Clause 233 - Admissibility of statements

Pensions Bill – in a Public Bill Committee at 10:45 am on 22nd April 2004.

Alert me about debates like this

Question proposed, That the clause stand part of the Bill.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I was puzzled by the provision. There are many so-called information requirements set out in enormous detail, where people are required as a result of the power to agree to requests to inspect premises and so on. All sorts of powers are set out in the Bill, and we have debated many of those ad nauseam. People have to produce those bits of information.

It looks as though pieces of information produced for the purposes of the Bill can be made admissible as evidence in any other proceedings, such as criminal proceedings or proceedings under section 168 of the Pension Schemes Act 1993 and so on. I begin to lose the plot at subsection (2). It determines that statements can be admitted in evidence. There is a question whether that is sensible. Will it make people more likely to draw on matters of privilege if they know that a statement they give for the purposes of the Bill can be used in criminal proceedings against them?

Photo of Vera Baird Vera Baird Labour, Redcar

I am grateful to the hon. Gentleman. I shall bask in this moment: I agree with him that there are concerns about the matter. I can see him flinching painfully and I find that understandable. Is it not the case that subsection (1) says that a statement made by someone in compliance with an information requirement under the legislation is admissible but only if it complies with the rules governing admissibility in the proceedings where one tries to introduce it? If it is not admissible under criminal law generally, and if it is involuntary—as it will be if it is brought about under a duty in the legislation—it will probably not be admissible in criminal proceedings.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I bow to the hon. and learned Lady's expertise, which is far greater than mine. I share her slight embarrassment that she and I seem to agree on something. I see her point about subsection (1). There is a question of admissibility of evidence, and there are a vast amount of rules on that subject, presumably to protect people's rights.

However, I am still very puzzled by subsection (2). If a statement complies with the rules about the admissibility of evidence in the ordinary way then it can be included as evidence in criminal proceedings. I do not understand the slightly odd provision that states that the prosecution or the regulator, who may be acting as prosecutor, cannot then adduce evidence relating to the statement, and

''no question relating to it may be asked''

unless whoever is representing the person involved raises questions themselves. It is rather like referring to previous convictions in a criminal trial.

It is a very long time since I have participated in any capacity in a criminal trial—certainly as a lawyer. I remember that the great no-no was to cross-examine police witnesses in such a way as to make the judge reveal the client's previous convictions, and in those days all my clients had significant numbers of previous convictions.

Is there a parallel there? This is not just a lawyer's point, although it is uncanny that the two lawyers on the Committee have battened on to it. What is the measure designed to achieve? If such a statement is admissible there are question marks about that, particularly concerning whistleblowing, and people's frankness and honesty in relation to pensions legislation—they might worry about more draconian things that could happen to them further down the road as a result of their statement. The statement might well require amplification, clarification and amendment, with regard to other evidence. It is odd that nobody can then proceed to adduce further evidence, nor ask any question relating to it, unless the defence puts the issue in play by its own actions. That is an important point.

Photo of Vera Baird Vera Baird Labour, Redcar 11:00 am, 22nd April 2004

I had thought that this was an anorakish lawyer's point, so I am grateful to the hon. Gentleman for making it clear that it does have some mainstream importance, particularly in relation to whistleblowing.

Clause 233(1) refers to:

''A statement made by a person in compliance with an information requirement''.

Those are all defined, but they are basically duties to say something—to give a statement. Such a statement can be admitted in criminal proceedings

''so long as it also complies with any requirements governing the admissibility of evidence''

in those proceedings. Nothing in this legislation makes it admissible in criminal proceedings, but nothing stops it from being admissible if it is admissible according to criminal law rules.

However, there is a curious extra bit in subsection (2), which begins:

''But in proceedings to which this subsection applies''.

Subsection (3) specifies what those proceedings are; there is a short, or perhaps medium-sized, list of offences. If someone is charged with any of those offences, even if according to the criminal law rules a statement is admissible it cannot be admitted unless the defendant brings it into play.

I do not understand why that extra provision has been included. In particular, I do not understand why it has been put in as a protection for the offences in the list. If someone is charged with theft, fraud or obtaining pecuniary advantage by deception—or with any of the other charges that they could be faced with under the general criminal law—and if they have made statements under this measure, it appears that those statements would be admitted if they were

admissible in criminal proceedings, and that the extra protection would not apply. The extra protection that the statement cannot be admitted unless the defendant puts it in play applies only to a few listed offences. I do not understand why the extra protection is needed at all, or why, if it is needed, it is not needed across the board in all criminal proceedings, as opposed to just these few.

Photo of Malcolm Wicks Malcolm Wicks Minister for pensions, Department for Work and Pensions

As we have heard, this clause deals with self-incrimination. It provides that a statement given by a person in response to an information requirement imposed by the Bill cannot be admitted by the prosecution as evidence against him in criminal proceedings or any proceedings of the regulator that may result in a financial penalty being imposed. The same applies to evidence relating to such a statement.

Of course, the clause provides that the person who made the statement may use that statement in evidence themselves in such a case if they wish to do so. I will give an example. We have debated clause 45, which imposes on a number of parties a duty to report breaches of the law, commonly known as whistleblowing. Therefore, if the trustees have failed to appoint an actuary in a defined benefit scheme in order to ascertain its funding position, there is a duty for the trustees to inform the regulator that the scheme has no actuary.

The regulator could not use that report in proceedings to impose a penalty on the trustees. However, it could still act on the report and ensure that an actuary was appointed by issuing an improvement notice or, in an extreme case, appointing an additional trustee. If the breach were very serious and the regulator decided that the imposition of a sanction on the trustees would be an appropriate tool to use, it could still do so. However, it would then have to obtain evidence of the lack of an actuary from a different source, such as the auditor or administrator of the scheme.

Subsection (4) lists the information requirement provisions in the Bill that impose a duty to make statements. It provides that such statements can be used as evidence if the breach or alleged criminal offence is one of failing to provide information and as evidence relating to perjury offences. It will ensure that, when the regulator or the board of the PPF require information relevant to their functions, those with a duty to provide such information can be punished if they either fail to supply it or provide false information.

In the important area of law under discussion, I feel slightly outgunned, not least by my hon. and learned Friend the Member for Redcar (Vera Baird). In addition to what I have just said, I will reflect on what she and the hon. Member for Eastbourne have said.

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I appreciate what the Minister says. One does not expect him to say, ''Ah!'' and receive inspiration immediately, because we are discussing a difficult matter. I may have misheard him, but in his opening remarks he seemed to suggest that the

provision would allow the person who provided the statement to choose whether it was used in evidence. He gave the example of the whistleblower, and I understand that situation, in which someone who would not be blamed for anything comes forward to provide a statement. It is perfectly right and proper to encourage that.

My concern, and that of the hon. and learned Member for Redcar, was for people who had incriminated themselves by providing a statement, because they had done something that they should not have done, or not done something that they should have done. In that context, they cannot choose whether their statement is included. It seems that it will be included as long as it meets the normal rules for admissibility of evidence, and that is outwith the control of the individual.

Subsection (2) is about only whether anything can be added or subtracted from the statement by way of further evidence, so such a person would have no real control over it, unless their legal team decided to ask questions introducing further evidence about the statement. The statement is given, it is there and it will be included in court proceedings unless it fails to meet admissibility rules—

Malcolm Wicks rose—

Photo of Nigel Waterson Nigel Waterson Conservative, Eastbourne

I am quite happy for the Minister to write to us on this matter.

Photo of Malcolm Wicks Malcolm Wicks Minister for pensions, Department for Work and Pensions

As I said, I would like to reflect on the matter, but I would just like to add that in my opening statement I said that the clause provides that a statement given by a person in response to an information requirement imposed by the Bill cannot be admitted by the prosecution as evidence against him or her in criminal proceedings. I made that clear. I am advised that the protection against self-incrimination contained in subsection (2) does apply to Theft Act proceedings. It applies to all criminal proceedings other than those listed in subsection (4).

I have admitted that this matter represents deep legal water for a lay person such as myself, and I will reflect on our discussion and write to hon. Members should it prove appropriate—as it may well do.

Question put and agreed to.

Clause 233 ordered to stand part of the Bill.

Clauses 234 to 236 ordered to stand part of the Bill.