Clause 36 - Offences
Inquiries Bill [Lords]
9:45 am
Mr Jonathan Djanogly (Shadow Minister, Home Affairs; Huntingdon, Conservative)
The clause relates to offences that may be committed in the event of non-compliance with the inquiry or due to actions that are likely to hinder the inquiry in some way. There is universal acceptance for the principle behind the clause, which is that although the inquiry may not enforce sanctions when actions frustrate it, it is important that court support is available to ensure the smooth running and effectiveness of the inquiry process. I have two points for clarification in respect of subsections (5) and (6), which specify who can bring proceedings and under which circumstances.
It is appropriate that a distinction be drawn between the offences under subsection (1) and those under subsections (2) and (3). The former relates to offences when a person does not, without reasonable excuse, comply with a chairman’s notice under clause 22. Clause 22 notices can require a person to attend the inquiry to give evidence, to produce documents or to provide any other thing in their custody that the chairman feels may aid in his investigations. As subsection (1) has a narrow and directed ambit, applying only to such notices, it seems appropriate that only the chairman can bring proceedings for non-compliance. Only he will know when such action may hinder the inquiry to such an extent that proceedings would be appropriate. The enforcement of clause 22 notices will also be relatively swift, as the chairman need not go through the Director of Public Prosecutions to institute proceedings.
By contrast, subsections (2) and (3) have a much wider scope. They relate to any acts that may distort or suppress evidence or relevant documents. Given the general application to all issues relating to inquiry evidence, it is feasible that persons other than the chairman may have an interest in bringing proceedings. The Bill recognises that, but it also recognises the strength of opinion and possible bias of many people interested in an inquiry’s process. As such, subsection (6) requires that all proceedings brought under subsections (2) and (3) must go through the DPP. The Conservative Opposition fully appreciate the importance of ensuring that the availability of offences under the Bill and the related procedures are not abused by persons with an interest in the inquiry.
Why is it not open to the chairman as well to bring proceedings for offences under subsections (2) and (3)? He is chosen for his independence and so would not have any bias or ulterior motive in using the procedure to further any aim other than the efficient and effective progress of the inquiry. The need for him to go through the DPP each time he wants to bring such proceedings may be a waste of time and resources. In most instances when such proceedings are brought, it will be the chairman who will instigate them. Also, as with clause 22 notices, the chairman will be best placed to know when a person is distorting or suppressing evidence. No doubt the DPP would ask for the chairman’s judgment as to whether any complaints of such action were well founded and not tainted by bias. That underlines yet again the important role that the chairman can and should play in bringing proceedings for all clause 36 offences.
The Government state in the explanatory notes that they would like to leave open the possibility
“that prosecutions can be brought after the inquiry has ended (which would not be the case if the chairman had to bring them).”
Although that may be a reason to include the DPP in the process, it provides no basis for excluding the chairman from bringing proceedings during the lifetime of the inquiry. In any case, I imagine that proceedings would be brought after the conclusion of the inquiry only in exceptional circumstances, such as the destroying of evidence right at the end of the inquiry process, leaving little time to go through the courts. How does the Minister expect the post-inquiry procedure to be put to more frequent use? Such an unlikely occurrence provides little justification for the exclusion of the chairman from the procedure at all times and for the increase in bureaucracy and red tape involved in that process.
My second point can be dealt with more quickly. I note that subsections (5) and (6) prescribe who should instigate proceedings for the various offences under clause 36 in England, Wales and Northern Ireland. Scotland seems to have been overlooked. The explanatory notes provide some enlightenment in that in Scotland the offences under subsections (2) and (3) are the responsibility of the Crown Office and the Procurator Fiscal Service. However, no mention of Scotland is made in relation to the offence under subsection (1). No doubt there is an entirely sensible explanation for that, but I would appreciate it if the Minister clarified matters.