R v Chaytor and Others

Each of the appellants had been committed for trial at the Crown Court on charges of false accounting. The charges relate to claims in respect of parliamentary expenses and were alleged to have been committed when each defendant was a serving member of the House of Commons. Each claimed that  criminal proceedings cannot be brought against him because they infringe parliamentary privilege.

A single preparatory hearing pursuant to section 29 of the Criminal Procedure and Investigations Act 1996 was held to consider this point in relation to all four defendants. Saunders J, sitting in Southwark Crown Court, ruled against the four defendants. All four appealed to the Court of Appeal dismissed their appeal. Each of the defendants has been charged with false accounting contrary to section 17(1)(b) of the Theft Act 1968.

The defendants contended that the Crown Court has no jurisdiction to try them in respect of the charges on the ground that this would infringe parliamentary privilege. The claim to privilege had two bases. The first was article 9 of the Bill of Rights 1689 (“article 9”).

The defendants further relied on privilege that had its origin before 1689 which had been customarily described as the “exclusive cognisance of Parliament” but had also been described in argument as “exclusive jurisdiction”.

The Court of Appeal went on to develop the theme that claiming expenses had nothing to do with the essential, or core, functions of a Member of Parliament. In doing so, however, the court repeatedly considered this question in relation to the presenting of dishonest claims for expenses:

“In truth, it is impossible to see how subjecting dishonest claims for expenses to criminal investigation would offend against the rationale for parliamentary privilege…” (para 76).

“It would therefore be curious if privilege were to apply to the member who defrauded the Fees Office by submitting a false claim for expenses…” (para 77).

“…the decision to set up, and the terms of the system could not be subject to the court’s jurisdiction. Be that as it may, it does not then follow that the dishonest operation of this system by individual members is excluded from it” (para 78).

“on the basis that the implementation of the scheme might constitute a proceeding in Parliament, it does not follow as a matter of logic, convenience or principle, that the dishonest actions by a member when making his claim should be immune from criminal

prosecution” (para 78).

“It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament” (para 81).

“The stark reality is that the defendants are alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege does not, has never, and, we believe, never would attach. If the allegations are proved, and we emphasise, if they are proved, then those against whom they are proved will have committed ordinary crimes. Even stretching language to its limits we are unable to envisage how dishonest claims by members of Parliament for their expenses or allowances begin to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties” (para 82).

Counsel for the defendants submitted that claiming expenses was part of a scheme that was covered by privilege in that the payment of expenses was necessary to enable, or for the purpose of enabling, Parliament to perform its core or essential parliamentary business, to which article 9 related. This was the whole object of the system of allowances. More particularly, counsel submitted that the Court of Appeal had erred in principle in examining this issue on the premise that the claims for expenses were dishonest. Privilege from criminal prosecution would be nugatory if it did not apply to criminal conduct.

The Court concluded that when the House became aware of the possibility that criminal offences might  have been committed by a Member in relation to the administration of the business of Parliament in circumstances that fall outside the absolute privilege conferred by article 9,  the House should be able to refer the matter to the police for consideration of criminal proceedings, or to cooperate with the police in an inquiry into the relevant facts which was in fact done in the present proceedings. The area of activity to which these prosecutions relate is administrative. The House has asserted a disciplinary jurisdiction over claims that have been made for allowances and expenses and, to that end, the Members Estimate Committee set up a review of such claims. The House has not, however, asserted exclusive cognisance, or jurisdiction, in respect of such claims. Examination of the manner in which the scheme is being implemented is not, however, a matter exclusively for Parliament. there is no bar in principle to the Crown Court considering whether the claims made by the defendants were fraudulent. The Supreme Court concluded that neither article 9 nor the exclusive cognisance of the House of Commons posed any bar to the jurisdiction of the Crown Court to try the defendants.