Clause 13
Fraud Bill [Lords]
5:15 pm
Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)
I am not going to read a definition as such. As drafted, in our view, clause 13 makes clear that the offences under discussion are those involving any form of fraudulent purpose or conduct. That provides the right degree of specification for the context. We should bear in mind that the clause addresses the needs of civil justice and not to be deprived of evidence in property proceedings on the grounds that the answers and documents given may incriminate the person who gives them.
At the stage when someone is giving answers, the matter of whether an answer or a document discloses a fraud under the Bill, or some other type of fraud, may not be clear. It is likely that it will only be clear that his answers might show that some form of fraud has taken place. That might be a fraud that could be prosecuted under the Bill, or possibly under section 458 of the Companies Act, VAT legislation or tax law. We should not tie the law to a specific list of offences which might leave gaps in which a person who does not want to answer questions, might say that it may or may not fit into a particular list.
We want any form of fraudulent purpose or conduct to be covered by that provision. For example, with a list of specific offences, a person might say that the clause does not apply. Therefore, he is not going to answer any questions because he might disclose an offence of benefit fraud, for example, that should be dealt with under the Social Security Acts. We would have to list everything in order to make sure that we do not give a loophole, that someone could use not to answer questions in a civil case.
We could put the Social Security Acts on the list and all the offences that could be characterised as fraud. However, it would be much simpler, more straightforward and understandable for individuals and for the court, to know that we have a generalised definition in the Bill. Ultimately, it will be a matter for the judge in the trial as to whether a party to civil proceedings can refuse to answer questions on grounds of self-incrimination. It is the judge who has to decide whether clause 13 should apply or not and clause 13 exemption applies. Judges are perfectly capable of applying clause 13. Our approach is better than the specific list of offences that the amendment suggests. A specific list would add to a great deal more confusion. It might also encourage persons who wish to refuse to answer questions to find a loophole. Something might not be on the list, which they might have cause to fear, and they might not want to incriminate themselves.