COMMONS AMENDMENTS (Hansard, 25 October 1990)

§ Lord Fraser of Carmyllie
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 13. These are all essentially procedural matters under Clause 5. The first amendment is a clarifying matter which makes it clear that the application by a nominated officer to the sheriff for an order under Clause 5(6) is by summary application procedure. Amendment No. 12 is also a clarifying amendment. The third amendment, Amendment No. 13, inserts a new subsection after subsection (6). It reflects concern expressed in Committee in another place 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 1548 questions or possibly committing 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 me for the purposes of discovering whether there appears to have been misconduct or mismanagement of a charity's affairs. The Government recognised the concerns expressed that there should be no room for dubiety here. The amendment accordingly makes it clear that a person must answer truthfully questions put to him by the nominated officer when an order has been made under subsection (6) and that he may not refuse to answer on the grounds that his answer might incriminate him. The new provision which the amendment seeks to insert also makes clear that no answer to a question under subsection (6) may be used in any subsequent criminal proceedings against the person.

§ Lord Macaulay of Bragar
My Lords, I wish to make some observations on Amendment No. 13. It appears to be a rather dangerous amendment and to make intrusions into the present law of Scotland, as I understand it. The object of Clause 5 of the Bill is clear as to the supervision of charities. Subsection (2) of that clause reads: Where it appears to the Lord Advocate (a) in the case of a body referred to in paragraph (a) or (b) of subsection (1) above—(i) that there is or has been any misconduct or mismanagement in its administration". I pause there because the noble and learned Lord the Lord Advocate tended to suggest that this was merely a civil matter and not a criminal one. Umpteen cases have been through the courts where what might appear primarily to be misconduct or mismanagement of a fund, has in fact turned out to be major fraud. Amendment No. 13 appears to meet an evidential difficulty. I appreciate that the reason behind the amendment is to devise a method of getting to the root of the misconduct or maladministration of the organisation.
However, when read closely, the provision appears to be an erosion of the right to silence insofar as it applies in a criminal case. I see the noble and learned Lord the Lord Advocate shaking his head. The difficulty with this amendment is that it ties in the civil with the criminal procedure. The amendment reads: 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,". There we move immediately from the civil to the criminal field because the word "incriminate" can only have a criminal context and not a civil one. The wording of the amendment continues: but a statement made by him in answer to any such question shall not be admissible in evidence in any subsequent criminal 1549 proceedings against him, except in a prosecution for an offence under Section 2 of the False Oaths (Scotland) Act 1933". The only sanction on a person who fails to comply with this provision is contained in Clause 5(7) which states: A person who fails to comply with an order under subsection (6)"— and no doubt under the provisions of the new amendment— shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale". Therefore, the sanction for saying nothing is not very much.
There have been cases in Scotland—indeed, there was the classic case some years ago in connection with the Post Office which I believe was Morrison v. Burrell and which, so far as I know, is the leading case—where answers given to investigators into Post Office affairs were founded upon in subsequent criminal proceedings. However, there is one difference between those proceedings; namely, that the investigating officers in Post Office and bank frauds issue a caution to the person whom they are interviewing so that he knows he has the right to remain silent. There is no mention in the amendment that any caution should be administered to a person who has been brought before the investigating officer.
What is happening is that this very dangerous clause is giving an out to a possible crook within an organisation. For example, what is to happen if the leading administrator of a large fund is taken before the appropriate officer and this clause is read to him, so that he is told that he is not excused from answering such questions on the ground that they may incriminate him or tend to incriminate him, but he is then told that it is all right and that he can say what he likes because it cannot be founded upon in any subsequent criminal proceedings? What happens if the person who has been asked to answer the questions has been guilty, or is apparently guilty, of appropriating £1 million of funds? Does it mean that by taking advantage of this new clause he can walk away from his guilt? Further, how is guilt to be proved in the criminal court once it becomes clear that he has walked away with £1 million which may either be in his suit pocket or invested in offshore companies, and so on?
If in subsequent criminal proceedings an attempt is made to prosecute such a person on the grounds that he is the major perpetrator, will he be able to found on the fact that he acted under the law by answering questions in terms of this subsection with the guarantee given to him by law; and would he be able to say, although his answer is not admissible in the criminal proceedings which may bring him before the High Court, that he is prejudiced by subsequent proceedings? Surely he would have taken advantage of the right to silence if he had known that ultimately he would be prosecuted. This raises fairly major evidential problems. I have tried to focus them as best I can with a view to being of some assistance to the 1550 House. Perhaps the noble and learned Lord the Lord Advocate would like to consider whether this is an appropriate way to get to the root of misconduct or mismanagement within the charities field.

§ Lord Morton of Shuna
My Lords, on a more simplistic note, if the person required to answer the question says, "I decline to answer the question" can he then be prosecuted under the terms of subsection (7); or is such an answer one which cannot be used in evidence in terms of this new clause? If that is the case, we have gone round in a complete circle and no one has got anywhere.

§ Lord Fraser of Carmyllie
My Lords, with respect, it appears to me that the noble Lord, Lord Macaulay, is pulling in two directions. In the restricted context of the examination of charitable matters in respect of a nominated officer we are seeking to ensure that, following application to the sheriff for an order, the person should attend to answer questions and furnish him with extracts, and so on.
In such circumstances, if the person concerned gives an answer which incriminates him—and, yes, that is intended to convey that he has made an admission which indicates that he was guilty of a criminal offence—that answer would never be used in any subsequent criminal prosecution. As a member of the Bar, the noble Lord will appreciate that there are frequently circumstances in which statements are made which for one reason or another are not admissible. The amendment sets out on the clearest statutory basis that if such an answer is required—and of course it is then in those circumstances a breach of the right to remain silent —the consequences of the breach of the right to remain silent are not affected because that cannot be used in subsequent criminal proceedings.
This is not the first occasion upon which this provision has been deployed in the law of Scotland. I think that my noble and learned friend Lord Cameron of Lochbroom may have some distant memory of a provision along not dissimilar lines. It attempts to keep the two matters apart. However, there is undoubtedly a difficulty when the noble Lord turns and pulls in the other direction. What happens in such circumstances if such a person makes a most significant admission of the grossest criminal conduct? The answer I must face up to bravely is that it is too bad, so far as concerns the Crown as the prosecutor of crime in Scotland. That answer, however valuable it may be, could not be part of the evidence against that individual in subsequent criminal proceedings. Nevertheless, that does not of itself exclude the possibility of criminal proceedings if there is otherwise sufficient evidence to prosecute the person.
So far as concerns the point raised by the noble and learned Lord, Lord Morton of Shuna, if the person fails or refuses to comply with such a requirement it seems to me that he could be guilty of an offence under subsection (7), which is set at level 5; and that, I understand, currently stands at about £2,000.