Clause 38 - Expenditure

Commissioners for Revenue and Customs Bill – in a Public Bill Committee at 9:30 am on 18 January 2005.

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

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I wish to probe the Minister on the question of costs, as there appears to be no provision for them in the Bill. That is mildly surprising because the Prosecution of Offences Act 1985 sets out in considerable detail the basis on which costs might be awarded in favour of the prosecutor, a defendant who may be acquitted or an accused who may be convicted. By analogy, the relevant clauses in the 1985 Act are section 16 for defendants, section 18 for the award of costs against the accused, and section 17 for prosecutors' costs. I thought it might be helpful to remind the Committee of the detailed regime for the award of costs. It is particularly in point to this clause because there are cost implications for the new body, and it would be helpful to hear from the Minister why provisions analogous to those in the 1985 Act are not in the Bill.

There could be resource implications for the body and the Government if costs are awarded to the defence in any prosecution brought by the body. The three cases in which a defence costs order could be made are where an information laid before a justice of the peace for any area charging any person with an offence is not proceeded with; or a magistrates court inquires into an indictable offence; or a magistrates court summarily deals with an offence and dismisses that information. Any person who is not tried for an offence for which he or she has been indicted for trial, and any person who is tried on indictment and acquitted on any account of indictment, would be in the frame for a defence costs order.

For an accused, the analogy is with section 18 of the 1985 Act. In cases where any person is convicted of an offence before a magistrates court, or a Crown court dismisses an appeal against a previous conviction, or any person is convicted of an offence before a Crown court, the court may make an order for costs to be paid by the accused to the prosecutor, such as is just and reasonable.

I will not detain the Committee with reference to the award of costs to the prosecutor. However, I have cited two examples of very specific costs orders that could be awarded. On the one hand, there is a defendant's costs when they are acquitted; and on the other, there are costs when an accused does not defend his or her actions satisfactorily and is convicted or perhaps loses an appeal. In such cases, there are resource implications for the body as it will incur expenditure.

First, will the Minister explain why resource provisions have not been included in the Bill? It seems a strange omission. There may be a good reason for it and for not following the example of the 1985 Act. Secondly, if the deficiency is as I suggest, what measures will she take to remedy that in regulations or in any other manner?

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I did take counsel from the Clerk to the Committee last week about where it would be appropriate to make these remarks. He indicated that clause 38 was as good a place as any. I have done my homework.

Photo of Dawn Primarolo Dawn Primarolo Paymaster General (HM Treasury)

The hon. Gentleman does not need to be so defensive. I was explaining my rush to catch up with him, as opposed to questioning whether he had raised the issue in the correct place. I am sure that you would have informed him if he had not, Sir John. As I understand it, the hon. Gentleman is raising questions with regard to the prosecution and defence clauses in the 1985 Act. That is dealt with in the Bill under clause 30 and schedule 3, which relate to Revenue and Customs Prosecutions Office costs. As a general principle, the 1985 Act applies across the board to all prosecutors, including the Crown Prosecution Service and the Serious Fraud Office.

The hon. Gentleman quite rightly asked me for details on the operation of, and accounting for, those measures under section 16 of the 1985 Act. He asked how it applies, how it would be accountable and why it is not included in the Bill. I ask for his indulgence as I say two things. The requirement to account for moneys does not need to be in the Bill in that it is accounted for within Government accounting. However, to be perfectly frank, he asked me some questions to which I do not have detailed responses at the moment. May I undertake to write to him speedily, giving him the answers about how section 16 applies and how it is accounted for? I undertake to write to him as quickly as possible so that if he is not satisfied, he will have enough time to return to the matter. I hope that on this rare occasion he will forgive me. He has caught me off guard on this issue. With his agreement, I will write to him. I will of course send the letter to all members of the Committee and to his hon. Friends in case they want to return to the issue.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I am grateful for the Minister's graciousness in saying that she will write to the Committee after this sitting. She referred to section 16. I just want to emphasise that it is not so much that the prosecution costs would be costs awarded in favour of Her Majesty's Government in the broadest sense; in that sense, it is not a cost implication or resource implication that I am too bothered about. What I am concerned about is the award of costs to a defendant who is acquitted, or an accused who is convicted and for whatever reason has costs awarded against them, or an accused who is convicted, appeals and incurs further costs for the Government as a result of that appeal, which is then dismissed.  

The concern is not about prosecution costs, but about the costs of the defence and the accused, as set out in sections 17 and 18 of the 1985 Act. Those costs fall on the Exchequer and taxpayers, and while provision for them to be assessed may be lurking in the legal costs regime and other parts of the statute book—the test in the 1985 Act is that they must be just and reasonable—it would be useful for the Committee to understand how the new body will deal with prosecution costs when they are awarded against an accused. A costs order draws on the public purse and it would useful to understand the mechanics of that. I do not know whether there is a reference to the 1985 Act and clarification would be useful.

Photo of Dawn Primarolo Dawn Primarolo Paymaster General (HM Treasury) 9:45, 18 January 2005

I want to be clear about what the hon. Gentleman is asking me. I believe that he wants to focus on issues such as when the Department's prosecution fails, giving rise to defence costs, and the Department appeals, giving rise to further defence costs. I believe that that is his particular point, although he is also interested in the general point and the criteria by which a decision is taken to pursue or not to pursue a case. That is what I am trying to respond to.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

The right hon. Lady elegantly clarifies my point. To take it one step further, there will be instances of an accused being convicted and wishing to appeal. The appeal may be won or lost, but in both cases there will be additional resource implications of going to appeal. It would be useful to understand the position. Whatever the outcome, there will be not just a compensation award to the accused for grievance and stress, but the additional costs of taking the first-instance decision, which the prosecuting authority did not like, to appeal. There would be two hits; the cost of the appeal to the prosecuting authority and the compensation award in favour of the accused. That would also be the case if a defendant were convicted on first instance but won an appeal with a defence costs order. In the case of an accused who subsequently won an appeal, the resource implications would arise not only from the award of a lump sum to the accused, but from the costs of that appeal. If an accused were convicted and subsequently lost an appeal, there would be no resource implications for the prosecuting authority because there would be no order on costs. However, there might be a cost implication from the appeal that the prosecuting authority would incur over and above the costs of the trial of first instance.

I hope that the right hon. Lady and I have teased out what we need to understand about the cost implications. It is not just the award of costs as a lump sum, which may or may not apply in the cases that I outlined, but the additional costs of going to appeal. The 1985 Act goes into considerable detail much more elegantly than my precis this morning, but that appears to be the model that has worked in the past for all other prosecutions and instances where there are defence cost orders, or orders awarded against the accused where they lose either at first instance or at appeal. Not to have it on the face of the Bill puzzled me   somewhat, though I know the right hon. Lady is assiduous in explaining to Committee after Committee why some things are not quite as we think. There is a lacuna in this legislation and I am happy for her to write in some detail, if she would be good enough to put my mind at rest.

Question put and agreed to.

Clauses 38 ordered to stand part of the Bill.

Clauses 39 and 40 ordered to stand part of the Bill.