Crime and Courts Bill [HL]

Lord Beecham Excerpts

Tuesday 13th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, Amendment 22 is a very low-key and minor introduction to this important new schedule about deferred prosecution agreements. It deals with the provision of certain persons to be designated as prosecutors who can enter into deferred prosecution agreements. Paragraph 3(2) states:

“A designated prosecutor must exercise personally the power to enter into a DPA”.

If I split an infinitive, it was because I was quoting. Paragraph 3(3) states that,

“if the designated prosecutor is unavailable, the power … may be exercised personally by a person authorised … by the designated prosecutor”.

This is a probing amendment. I seek to understand what is meant by “unavailable”. I assume that it would mean something more than “unavailable because he has gone to the dentist that afternoon”, and would mean unavailable because he or she is having long-term treatment for a medical problem that keeps them away from the office and away from work. The amendment specifies that the unavailability should be,

“for a period of or likely to be of more than 21 days”.

I am by no means wedded to that. As I said, this is a probing amendment, because “unavailable” could be read as meaning a very brief period where it would not be appropriate for power to be delegated. I beg to move.

[Lord Beecham]

My Lords, the noble Baroness raised a perfectly fair and reasonable point, to which no doubt the Minister will be able to reply. Looking again at paragraph 3, it strikes me that perhaps there are one or two other questions to ask. Paragraph 3(1) states that the prosecutor is designated by an order made by the Secretary of State. That is a very high-level appointment. It is emphasised by paragraph 3(2), which states that the designated prosecutor,

“must exercise personally the power to enter into a DPA”.

Again, it follows that this is a serious responsibility for somebody appointed at the highest level relevant to that appointment.

It would appear that the person then has a delegated power, in the circumstances which no doubt the Minister will elucidate of his or her unavailability, to appoint somebody else. There does not seem to be any procedure for that person necessarily to be one of a group approved in advance by the Secretary of State. It may be that a sort of panel system is envisaged, but that is not clear in the Bill. Presumably anybody could be designated—in theory they could be relatively junior—by the original designated prosecutor to carry out this very responsible work.

This thought had not occurred to me until the noble Baroness opened up the issue. However, it strikes me as a matter that the Minister should take back and look at. I would envisage that a panel system would apply, but surely it would be sensible to specify that that would be the case, rather than leave an untrammelled decision to the designated prosecutor in circumstances where he or she is not available to do the job. Perhaps the noble Lord, Lord Ahmad, will take that back and look at it, in order to answer both problems that we have identified this evening.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend for moving her amendment. When devising the new process for deferred prosecution agreements for England and Wales, the Government sought to ensure that it aligned with key strengths and aspects of the existing criminal justice system. To that end, we provided for decision-making throughout the process to be properly guided, including by the code of practice for prosecutors, and overseen by the judiciary.

Paragraph 3 of the schedule provides that the decision to enter into a deferred prosecution agreement with an organisation should be exercised personally by designated prosecutors, namely the Director of Public Prosecutions and the director of the Serious Fraud Office. This is to ensure that there is prosecutorial oversight of each DPA at the highest level. It mirrors existing requirements for such oversight, including, for example, decisions to bring proceedings under the Bribery Act 2010. Offences under the Bribery Act 2010 are among the economic and financial offences for which we propose DPAs. This process should be available, as detailed in Part 2 of Schedule 17.

My noble friend Lady Hamwee and the noble Lord, Lord Beecham, asked what would occur when the relevant director, whom we hope in each case will make the decision personally, is not available. In order that due process can continue without delay, we have provided the power for the relevant director, if they are going to be unavailable, to designate another prosecutor to exercise the oversight and decision-making functions. The noble Lord, Lord Beecham, asked whether they could assign this power to anyone. I suggest that someone who is qualified and in such a senior role will assign it to an appropriate prosecutor in their relevant area.

Consistent with similar powers for personal decisions by directors, such as those under the Bribery Act 2010, we have not sought to constrain the ability to delegate the power to enter into a DPA. We are not contemplating large numbers of deferred prosecution agreements each year, and are confident that the directors are fully committed to making decisions personally, as envisaged, and would designate another person to do so only in exceptional circumstances and with good reason—and, I will add, would designate only an appropriate person.

I consider it important in the interests of openness and consistency that DPAs should align as closely as possible with existing and established law, and with the processes of our criminal justice system. That is what we have sought to achieve in paragraph 3, and indeed throughout Schedule 17. I therefore hope that with this explanation my noble friend will withdraw her amendment.

[Lord Beecham]

I am grateful for the Minister’s response, but he has not quite addressed the issue. There is nothing in the Bill that would require the substitute prosecutor to be a designated prosecutor; they could be anybody nominated by the original designated prosecutor. I again invite the Minister to take this back and have a look at it. It seems—and I think that the noble Baroness agrees with me—that there is a lacuna here that needs to be filled.

[Baroness Hamwee]

My Lords, of course I will look in any direction that the noble Lord points me to in considering consistency with other legislation. I think that what we are being asked to do is to rely on the good sense, and good sense of responsibility, of those who hold the posts specified in paragraph 3(1)(c). I understand that and take the point seriously but, as the noble Lord, Lord Beecham, said, at least some further thought is required in order that we can be confident that enough constraint is in place. For the moment, I beg leave to withdraw the amendment