Gerald Kaufman – 1986 Speech on the Roskill Report

Below is the text of the speech made by Gerald Kaufman, the then Shadow Home Secretary, in the House of Commons on 13 February 1986.

The debate comes at at time when public concern about fraud is greater than it has ever been. A batch of unwholesome City scandals has justifiably aroused that concern. But, even without Johnson Matthey, without Lloyd’s and without the unsavoury aromas surrounding Westland share dealings, the extent of fraud and its increasing dimensions would certainly justify the disquiet among all sections of the population and in all parts of the country, especially among the small savers, who can least bear the irrecoverable loss and even ruin that fraud inflicts.

Mr. Doiran Williams, the Assistant Director of Public Prosecutions, in a rare public announcement, has voiced the feelings of millions in describing fraud as

“a significant destructive factor in our national life.”

In the outstanding report which we are debating this evening, Lord Roskill and his colleagues declare starkly:

“in the United Kingdom. fraud is a growth industry”.

The report goes on to warn:

“We hope that the gravity of this situation will not be underestimated. Fraud is posing a threat to London as a financial centre and to the considerable volume of invisible exports which represents a major factor in the economy of the country.”

The sums involved are enormous. A few days ago it was reported in the press that a Home Office survey soon to be published estimates that the loss to the United Kingdom financial community from fraud runs annually at £750 million.

Another study calculates that British companies are now being defrauded of £3 billion or more a year. A survey conducted by the accountants Ernst and Whinney has discovered that the average loss per company from fraud amounts to £6,156 a year, which again comes to around £3 billion nationally.

Let us be clear that these are not abstract losses which can easily be borne with a shrug. They are huge sums of money which could have been directed to constructive investment and to the creation of jobs. The extent of this plague of fraud is very wide. Fifty-six per cent. of companies feel that they have experienced fraud in the past, are experiencing it now or may be vulnerable to fraud in the future. Sixteen per cent. suspect that their companies may be a victim of fraud now, and only 1 per cent. of companies surveyed believe that fraud has decreased in the past five years. No fewer than 54 per cent. feel that it has increased. The latest crime statistics show that in the 12 months to September 1985 the increase in the crimes of fraud and forgery was 9·8 per cent. Among all categories of crime, this increase was second only to the 9·9 per cent. in robbery, and there were six times as many frauds as robberies. Those were only the crimes which were notified. Many more frauds are never brought to the attention of the authorities.

Even if all frauds were reported, the authorities are simply not equipped to deal adequately with them. For one thing, the pursuit of fraud is fragmented among far too many organisations whose co-ordination, where it exists at all, is often makeshift.

Between 1978 and 1985 the joint strength of the Metropolitan and City of London fraud squads itself was steadily rising. The Roskill report informs us that in 1983 the Metropolitan and City police company fraud department had its strength deliberately reduced by 10 per cent. because more officers were needed to combat street crimes and burglaries, a point to which the hon. Member for Bury St. Edmunds (Sir E. Griffiths) drew attention. ​ Over the country as a whole, as the Roskill report points out, the strength of the fraud squads represents approximately 0·5 per cent. — one two-hundredth—of total police manpower.

For England and Wales, the fraud squad totals fewer than 600. We should compare that with nearly 300 in Hong Kong, which has only one twelfth of our population and therefore proportionately six times as many police pursuing fraud. What is more, the London fraud squad personnel are constantly changing, and it is said that it is common for an officer to be promoted in the middle of a complicated case to traffic or diplomatic protection.

It is no wonder that Mr. Doiran Williams, the Assistant Director of Public Prosecutions whom I have already quoted and who controls the fraud investigation group, recently complained that all who work in the fraud divisions struggle with what he called a “quite monstrous case load”. From start to finish, the process of pursuing fraud is bedevilled by a shortage of resources. To me, one of the most shocking revelations is to be found in paragraph 6.34 of the report, which says:

“It is important, in our view, for the judge who is studying a voluminous set of papers in a fraud case out of court to be able to dictate the crucial points in the case so that they can be set out in typewritten form for his later benefit. We understand that the secretarial facilities (typists. audio equipment) available to judges at the Central Criminal Court and elsewhere are seriously inadequate and make little or no allowance for this kind of work to be done. This is a matter of concern.”

A matter of concern! I admire Lord Roskill’s measured language. It is nothing short of a scandal. It is lamentable that a major report such as this has to be reduced to such de minimis recommendations as the recommendation that judges should be given adequate secretarial facilities. That is only one out of 112 recommendations in this definitive document.

It is a tribute to the thorough and thoughtful work of Lord Roskill and his colleagues that no more than a handful of the recommendations are controversial. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) will, with his special expertise, discuss many of these matters if he catches your eye, Mr. Deputy Speaker. Those which give rise to some concern and which I feel should be mentioned now include recommendation 58, which says:

“The law should be altered so that the defence are required to outline in writing the nature of their case at the preparatory hearing stage.”

This suggestion is made the more worrying by recommendation 59(i), which says:

“The prosecution and the judge should be entitled to comment at the trial, and the jury should be entitled to take account of and draw any appropriate inference from the defendant’s failure to disclose a particular line of defence on which he relies at the trial.”

Mr. Gerald Bermingham (St. Helens, South)

Does my right hon. Friend agree that it would be highly prejudicial and completely contrary to the whole of our judicial system if, in a case in which the defence did not discover its line of defence until after the preparatory hearing, adverse comments could be made at the trial?

Mr. Kaufman

My hon. Friend has a legal experience that is denied to me. I accept and am impressed by what he says. My view, as a non-lawyer, when I read the report was that this provision was potentially dangerously prejudicial and I hope that it will be examined with great care before the Government contemplate proceeding with it.

​ I am also worried by recommendation 78, which is that the defendant’s right of peremptory challenge of the jury would be abolished together with the prosecution’s right to stand by for the Crown. That needs the most gingerly consideration.

The recommendation that has aroused the greatest controversy is 82, to which the Home Secretary referred, and which states:

“For complex fraud cases falling within certain Guidelines, trial by a judge and two lay members should replace trial by judge and jury.”

I have already said, and I shall plainly say again now, that this recommendation is not acceptable to the Opposition. We want fraudsters to be convicted and we want them to be punished. We would like the worst to be punished in an exemplary way, but we believe that they should he fairly punished after being fairly tried and clearly found guilty.

One of the things that worries us most is the concept which is introduced by the majority procedure on the proposed tribunal of reasoned acquittal. The concept of reasoned acquittal is a very dangerous innovation, and I very much hope that it will not be proceeded with. Our objections are best summed up in the note of dissent by Mr. Walter Merricks, which are published at the end of the report. He refers to the constitutional argument advanced by Lord Devlin, among others, that the right to jury trial has become so much of an institution that it has become more or less a convention of the constitution that citizens should not be liable to more than a limited term of imprisonment otherwise than on a jury verdict. He said:

“The burden is on those who wish to alter the system of jury trial, not simply because that is the present system, but because the right of the citizen not to be liable to incarceration for a lengthy period (the maximum sentence for conspiracy to defraud is life imprisonment) other than on a jury verdict has become a civic right which should only be dislodged for good cause.”

The Home Secretary has said that the problem of definition of complex cases is difficult. The report draws attention to the fact that, last year, in Hong Kong, these difficulties were revealed and had to be discussed when it was there proposed to try complex commercial crimes without a jury.

Moreover, as Mr. Merricks says, there is little or no evidence to suggest that complexity is a deterrent to prosecution. Figures for 1983 provided by the Director of Public Prosecutions show that, out of 71 cases in which it was decided not to prosecute, only one failure to prosecute was due to complexity.

It seems that, in that case, cost was just as important. There is a danger that, with no incentive to simplify, trial before only a judge and expert lay members would involve more complexities, not fewer, and that that would work to the disadvantage of the accused as well as to the bewilderment of the public.

Even more worrying is the possibility of the removal of the right to a jury trial being extended from fraud cases to others. The Roskill report states frankly:

“We realise that if our recommendations are adopted in fraud cases it would be logical for some of them to apply in all criminal cases … we have been careful to ensure that we were not proposing changes in law and procedure which we would not be prepared to see applied to other types of criminal case.”

In Monday’s debate in the other place, for the Home Office, Lord Glenarthur rather assuringly said:

“I should make it clear that we do not consider this recommendation”—

to dispense with a jury in complex fraud cases— ​

“to have any application wider than the complex fraud cases which the committee had in mind.” —[Official Report, House of Lords, 10 February 1986; Vol. 471, c. 72.]

That was not the impression given by the Home Secretary in his statement last month when he said:

“Some of the recommendations may well be applicable in other sectors of the criminal law besides fraud.”—[Official Report, 14 January 1986; Vol. 89, c. 928.]

Mr. Hurd rose—

Mr. Kaufman

I may save the right hon. Gentleman making an intervention, but if he wishes to make it I shall give way. Tonight, he appeared to have shifted from that stance towards that given by Lord Glenarthur. If so, it is welcome and the right hon. Gentleman need not rise from his relaxed position to reiterate it. Whatever assurances we receive, I believe we should heed the important warning in the joint statement issued by the Criminal Bar Association and the Law Society Criminal Law Committee. The warning they give is of great importance:

“History shows that constitutional changes based upon particular problems are seldom correct and often regretted.”

Mr. Hurd

I am sure that the right hon. Gentleman is aware that the report itself makes it clear that, although some of its other recommendations might be applied to sectors outside fraud, that one was argued simply on the basis of complex fraud. That has always been my position.

Mr. Kaufman

I am glad that the right hon. Gentleman has said that. I had the privilege—I shall not go so far as to say the pleasure, although I do not mean that as a criticism of the literary style — of reading the report from beginning to end. Of course I saw that. I also saw the two quotations which I felt it right to make.

The committee did not make any caveat or exclusion in paragraph 1.5 when it said:

“if our recommendations are adopted in fraud cases it would be logical for some of them to apply in all criminal cases … we have been careful to ensure that we were not proposing changes in law and procedure which we would not be prepared to see applied to other types of criminal case.”

It is important to get it clear because we are opposed to the Government proceeding along that path. We do not believe that it is a proper and acceptable change. If they do so, it is very important indeed for it to be made clear that it is a unique change even though my right hon. and learned Friend the Member for Aberavon has already intimated in an intervention that it would be illogical.

Mr. Richard Hickmet (Glanford and Scunthorpe)

Whether or not the recommendation about jury trials is confined to complex fraud cases, no doubt the right hon. Gentleman will be concerned with the final sentence in paragraph 8.22:

“Society appears to have an attachment to jury trial which is emotional or sentimental rather than logical.”

Mr. Kaufman

I accept that completely. There is logic to a jury trial, but in a democracy based upon consent, emotion and sentiment have an important place. I warn the Conservative party that far too often it makes the mistake of pursuing the path of tidy logic against possibly fuzzy public sentiment. Fuzzy public sentiment is important in a consenting democracy.

Mr. Hickmet

The right hon. Gentleman has made precisely the point which I was endeavouring to put to him. The statement in that paragraph is extremely ​ dangerous. I agree with the manner in which the right hon. Gentleman has analysed it and despatched it. It is a most dangerous statement with which I hope the Home Secretary does not agree.

Mr. Kaufman

Then we are pals together and that is all right.

I sum up my argument at this stage by advising the Government to steer clear of that proposal. If they do, I believe that they will have the support of most hon. Members on both sides of the House.

Mr. Ivan Lawrence (Burton)

Since he is as concerned as everyone else that the system should not be unfair, has the right hon. Gentleman considered the possibility that some accused people in very complex fraud trials involving, for example, City institutions may be worried that juries may not be able to understand the matter and may think that a special tribunal could understand it? In very complicated trials, might there not be an argument, for the protection of the innocent individual, that he should be able to choose, if he wished, a specialist tribunal in which he had more confidence than a jury? Has the right hon. Gentleman considered that and has he ruled out all possibilities of having a special tribunal even in such circumstances?

Mr. Kaufman

If I were to go to trial for any offence, I am sure that I would cast around and try to decide the best way to be acquitted. But we do not base jury trial on subjective approaches in individual cases. I wonder whether, before his trial started, Mr. Ponting believed that he would be tried fairly by a jury. I wonder too if he believed that when it was decided, rightly in my view, by the Government to make available the extremely complex document, the “crown jewels”, for the jury to consider. The jury considered it and came to a conclusion with which I agree. Hon. Members may make an ex parte judgment, but we are considering the general question of the rightness of jury trials in cases where people are liable to long terms of imprisonment. On that I do not wish to depart from the views that I have put to the House. The proportion of my speech on those matters has been lengthened by the interventions, but I do not regret that.

Dozens—scores indeed—of the Roskill recommendations can usefully be implemented by the Government with the support of the Labour party and no doubt with the support of Conservative Members. For example, it is plainly absurd that the pursuit of fraud should be split among 47 organisations, co ordinated imperfectly where it is co-ordinated at all.

I welcome especially the recommendations to examine the creation of a new unified organisation responsible for all the functions of detection, investigation and prosecution of serious fraud and, meanwhile at any rate, the establishment of a fraud commission. The recommended appointment of a case controller for each serious fraud case makes obvious sense, as does the provision of more expert accounting staff for the Director of Public Prosecutions and police fraud squads.

We also support nomination of a trial judge at an early stage after transfer or committal to a Crown court and the provision of adequate time for the judge to familiarise himself with the case before the preparatory hearing. Again, speaking as a layman and referring back to the ​ passage about secretarial facilities for judges, I am astounded that such facilities are not already available. It shows the makeshift way in which we approach justice.

Above all, recommendation 10 goes to the heart of the whole problem.

Without the Government’s commitment to that recommendation they might as well not have asked Lord Roskill to do this essential and painstaking job. The recommendation states:

“The resources devoted to the pursuit of fraud must be expanded as a matter of priority.”

That sounds elementary, but resources will be provided only if the determination exists to provide them. It must be said that far too often the determination to pursue fraud has not been evident. The Economist has drawn attention to what it calls the “lack of determination”. It stated that, in 1983, 323 reports of alleged company fraud were reported to the Director of Public Prosecutions but only 47 were prosecuted.

There are other failures, too. The Roskill report deplores what it calls:

“the reluctance of individual police fraud squads to seek assistance from other fraud squads because the requesting force would be required to pay for the help given.”

In Manchester we are complaining because we have had to pay £400,000 out of our rates to finance security round a trial which we did not ask to be held in Manchester. That financially prudent consideration—the reluctance of a requesting force to pay for help given—was not evident during the miners’ strike when police forces spent £200 million, if not more, on exactly that kind of mutual assistance.

Again, The Times—pre-Wapping—quoted the Roskill report’s estimate that the cost of a complex fraud trial is £500,000, stated that the Director of Public Prosecutions or the tax authorities were reluctant to press cases which cost so much unless they can safely predict conviction on serious charges. No such financial meticulousness has governed other decisions to prosecute. Only recently and at great expense there have been the trials of miners from Orgreave and Nottingham. The Orgreave trials cost taxpayers £500,000, and those in Nottingham cost a cool £1,500,000. Yet they ended, not in failure, but in a complete fiasco. The position may be more satisfactory if the Government pursue guilty fraudsters with a fraction of the zeal with which they have pursued miners who have been shown to be innocent.

Although fraud is a disgraceful crime which bleeds individuals, small savers, companies and the economy of vast sums, it is still more socially acceptable and genteel—a nicer crime—than burglary, robbery or theft, all of which are rightly pursued by the police with great zeal, although, regrettably, with varying degrees of success. During the period of the Government, for every one person sent to jail for Inland Revenue fraud, 20 have been sent to jail for social security benefit fraud. It is no wonder that Mr. Walter Merricks calls for prison sentences for unscrupulous operators, both to deter fraud and to reassure the public that double standards are not being applied.

There is a strange whiff of those double standards in a circular issued to chief officers of police by the Home Office last February, and I should be grateful if the Minister would explain that when he replies. The circular, which is printed in the Roskill report, states:

“The following types of fraud case should also be reported to the Controller of FIG so that he may exercise his discretion whether they should be investigated by FIG.”

He gives five categories where that procedure should apply. The fourth relates to people connected with Lloyd’s of London, the stock exchange and other commercial exchanges, and the fifth involves well-known public figures — for example, Members of Parliament and captains of industry. Why is it believed that such people require special treatment before an investigation is authorised?

The Solicitor-General (Sir Patrick Mayhew)

The right hon. Gentleman has unwittingly perpetrated or contributed to a widespread misunderstanding that prosecutions are initiated by the Government. He compared the zeal, or lack of it, with which the Government prosecute fraudsters with that with which they prosecute miners. Does he accept that, in the case of the Director of Public Prosecutions, a prosecution is initiated on the director’s independent judgment—he is supervised by the Attorney-General, but there is no Government involvement — and that the miners’ prosecutions were initiated by a county prosecuting solicitor at the instance of the chief officer of police? I hope that the right hon. Gentleman will acknowledge that important distinction.

Mr. Kaufman

I have known the Solicitor-General for many years, and his integrity is absolute. I always accept what he says, but he misunderstands what I am seeking to say, and, indeed, what other people believe. Obviously, I know that the Government do not instigate prosecutions. Recent cases prove that, if anything could. The Solicitor-General acts independently, and resents it if there is any intrusion on his independence. On the other hand, there is what the judge who sentenced Sarah Tisdall called the “climate of the times”. There is also the climate created by Ministers, such as the right hon. and learned Member for Richmond, Yorks (Mr. Brittan), who was Home Secretary when the trials were pending and called for heavy sentences on men who had still to be tried. That was prejudicial to those trials. Therefore, what the Solicitor-General said does not in any way contravene what I have said.

My point is borne out by a leading article in The Times which was published at the same time as the Bill—pre-Wapping. It states about the failure of the detection and prosecution system to bring most of the major professional fraudsters to court:

“In social terms that has led to a suspicion that the rich and well-connected can get away with it.”

The Times knows a bit about the rich and well-connected. At the same time, the Financial Times warned even more emphatically at the conclusion of a leading article:

“the idea that white collar crime is somehow different is not one that society as a whole can tolerate.”

Mr. Doiran Williams states of fraud:

“It is divisive in terms of class because where the law enforcement agencies fail—for whatever compelling reason—to prosecute those whose conduct has been demonstrably and grossly dishonest, the cry goes up that ‘there is one law for them and another for us’.”

It is extremely important that society should recognise that fraud is a crime more serious and more damaging than most others, but which is not pursued with the zeal and relentlessness that it should be. That is what the Roskill report is all about. That is why, with the exceptions that I have mentioned, we in the Labour party believe that the ​ recommendations in the Roskill report form a firm basis for speedy action, and that the public is looking to Parliament for that speedy action.