Fraud Bill [HL]

My Lords, I am grateful to both noble Lords who have spoken. In the passage of the Bill so far, we have had quite a thorough discussion of the circumstances in which—in the Government’s view, in my view and in that of prosecutors—it would be appropriate to continue to use the common-law conspiracy to defraud. We have had those discussions to some extent outside the House, too; I referred on the last occasion that we debated this matter to a meeting that took place at which prosecutors were available, and I set out examples in a letter that I sent to noble Lords, including both noble Lords who have spoken—the noble Lords, Lord Goodhart and Lord Kingsland. I also said, when we had a particularly valuable debate on this matter on Report, that the focus on this issue was a result of the inquiry that had been made through observations in the House at Second Reading and in Committee. Those observations were very helpful in focusing attention on the merits of the proposal. I am grateful also to the noble and learned Lord, Lord Lloyd of Berwick, who also took an important part in this debate, although he is not in his place now. I said then that the focus on this issue had left me more persuaded rather than less that it was right to retain the common-law offence of conspiracy to defraud. During discussions both inside and outside the House, I broadly identified the circumstances in which I was persuaded that, at least for the time being, it was right to keep the common-law offence of conspiracy to defraud. That is reflected in the draft working guidance that I sent to noble Lords and to which they have spoken. I am grateful for the warm words that they used about it. Let me take up the invitation of the noble Lords, Lord Kingsland and Lord Goodhart, to say a little bit more. First, this is working guidance, which has been considered with the directors of the prosecuting authorities, who agree with its content. I propose to issue final guidance around the time of Royal Assent—obviously, I will ensure that noble Lords have it at that stage and I will place copies in the Libraries of both Houses. The guidance will then be issued to the directors of the prosecuting authorities: the Crown Prosecution Service, the Serious Fraud Office, the Revenue and Customs Prosecuting Office and what we call the Whitehall prosecutors—other government prosecutors who do not fall into any of those three offices. I intend the guidance to apply to all of them. They will probably want at least the larger offices to issue their own more detailed guidelines, but those will be based on my guidance. What, then, does the guidance say? As the noble Lord, Lord Kingsland, has noted, it sets out a little of the background. It then explains the process that we intend to follow. As I said on Report, one of the merits of the approach that I am adopting in this guidance, which is to require prosecutors to record their reasons for using the common-law offence, is that it will both focus their attention on why they are doing it and give us a record that we can look at afterwards to see whether we have got this right. The guidance will give my view, as in paragraph 9 of the draft, that common-law charges may still be appropriate in two sorts of cases, or in the types of cases set out in paragraphs 12 to 15. First, there are those that the noble Lord, Lord Kingsland, has identified as cases where that approach is desirable for sentencing purposes. I think that that is shorthand; it is rather narrow in its description. In fact, that category covers cases where the interests of justice can be served only by presenting to a court an overall picture that cannot be achieved by charging a series of substantive offences or statutory conspiracy. On earlier occasions, I have given examples of where that may be, and the guidance does that as well. The second category covers cases where, as the noble Lord rightly identified, the conduct is such that it can only be prosecuted as conspiracy to defraud. The purpose of the guidance is therefore to give that guidance. I turn to the status of the document. I understand why the noble Lord, Lord Goodhart, has tabled his amendment. I noted without any surprise his indication that he did not intend to ask the House to divide on it, and he in turn will not be surprised to learn that I would not have thought the amendment was necessary. I issue guidance and guidelines, as my predecessors have done, on a number of topics. Recently, I have done so regarding disclosure of documents about the acceptance of pleas, and there have also been Attorney-General’s guidelines on other matters such as asking jurors to stand by. I would not think it at all necessary for such guidance to have the backing of statutory authority for it to be followed by prosecutors; I know of no problem in that respect. As it happens, I have quite a powerful weapon to enforce it myself: the ability to intervene in any case and to stop that case using my powers of noli prosequi if I were not satisfied with the way in which the prosecuting authority was acting. That is a longstop, but it is effective. I hope that I have adequately addressed the questions put to me by both noble Lords. I note that the noble Lord will withdraw his amendment on that basis, and I invite him so to do.