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Dame Elaine Kellett-Bowman: Will the hon. Gentleman give way?
Mr. Straw: No speech of mine is ever complete without an intervention from the hon. Lady, and I am delighted to offer her an opportunity.
Dame Elaine Kellett-Bowman: The hon. Gentleman has raised a point about Lancaster prison. Does he recall
that we have had some notable trials there because, since the defendants are on the spot, there is no need to escort them to and from the gaol? That is a good reason to keep the court in Lancaster open.
Mr. Straw: I share the hon. Lady's view that Lancaster Crown court should be kept open. The blood transfusion service should also have been kept open, but that is not our responsibility--it is the Government's.
We welcome the proposals made in clauses 45 to 48 on jury and witness nobbling. I did not quite follow the point made by the hon. and learned Member for Montgomery (Mr. Carlile) about what would happen if the witness was nobbled to the point of death. He appeared to imply that there would be an incentive to murder if the death of a witness could lead to a case being wholly aborted. That would seem to encourage not just the nobbling of witnesses, but their murder.
Mr. Alex Carlile:
The problem was entirely my fault and I shall try to help the hon. Gentleman. Clause 45 would provide that before a retrial following a tainted acquittal, there would have to be two preconditions--first, an acquittal and, secondly, a conviction of a nobbler.I was trying to make a point--I confess that I did not do it well--about what would happen if the nobbler was dead. In that instance, there could be no conviction of the nobbler and, therefore, no retrial. I do not see why there should not be a retrial in such circumstances, provided that the requisite evidence comes up to the criminal standard. I hope that I have made that clear now.
Mr. Straw:
I now understand the hon. and learned Gentleman's point. There is a big difference between the death of a witness and the death of the person who has nobbled a witness. I accept that the hon. and learned Gentleman's point is important and I am sure that it will be raised in Committee. With great respect, I must say that the point is entirely the opposite of the one he made in his intervention.
Clauses 49 to 52 would make some important changes to the law on derogatory assertions made in mitigation, and we welcome that. I have read the clauses, as the Home Secretary might expect. So far as I can judge, no one person in the court system will have a duty to raise with the bench the question of whether derogatory assertions have been made. Although the power is available to rule out derogatory assertions, there is no specific trigger.I assume that that is left to the judge in the Crown court--who would be alert to the situation--to the clerk in the magistrates court or to the members of the bench. I am sure that a stipendiary magistrate would be alive to the problem, but a non-stipendiary magistrate who has to deal with many cases may be less alive to the possibility that derogatory assertions have been made.
I want to ask two questions. First, should the prosecutor, once mitigation has been made, have a right to make submissions to the court to the effect that these powers ought to be brought into play? My second question is a wider one, but it is important. Should prosecutors have wider duties at mitigation? Curiously, the English courts have the strictest rules of evidence for defence and prosecution when it comes to the trial of an issue. These rules of evidence stretch right back to the moment when a person is identified as a suspect by the police. Elaborate rules govern the cross-examination of
suspects in police stations--far more onerous rules than those governing the cross-examination of innocent people acting as witnesses for the prosecution in open court.
There are, however, effectively no rules when it comes to mitigation. Uncorroborated evidence about character, background, family circumstances and so on is advanced by defence lawyers as factual. At the moment, it is also unchallengeable.
I have recently been to the courts to refresh my memory of the days when I used to make small but honest living as a junior member of the Bar. It is astonishing to see the nature of mitigation. Sometimes, of course, high-quality people have produced good evidence that is not subject to criticism. But often, especially in magistrates courts,the same standards do not apply. Usually, we find, someone has died or a girlfriend has become pregnant or someone has just found a job--and so it goes on. It may well be true, of course, but these pleas in mitigation seem to spew out of the word processors of defence lawyers and no one challenges them.
That undermines confidence in the courts. It also means that all too often the defendant's previous convictions are skimmed over by the defence. Those previous convictions appear in brief on computer sheets: the bare details of a theft and the punishment for it, for instance. The defence will often try to minimise the nature of the previous convictions. My brief experience of sitting in courts recently showed me that, all too often, an unexpired conditional discharge has been issued but the magistrates courts do not properly take that fact into account or act upon it.
If the prosecutor could point out that someone had been up before, and could show the court files from which it becomes clear that a different bench has said that this was the person's last chance--if he commits the offence again, he will be subject to a custodial sentence--perhaps the problem would be alleviated. Certainly, the information should be given to the court; otherwise there will be no sense of serious progression in the sentencing system.
Mr. Alex Carlile:
Is the hon. Gentleman aware that until recently it was the practice in all Crown courts for there to be an antecedents officer, whose job it was to present the previous convictions of convicted persons to the judge, and to make inquiries, as requested by the judge or by the parties, as to the truth or otherwise of assertions that have been made--for example, about the facts of those convictions? Is he further aware that as a result of economies stemming from Government policies there are now virtually no antecedents officers in Crown courts? Would it be Labour party policy to restore those useful officers to the courts?
Mr. Straw:
I was aware of that, and the situation is serious. It is ironic that in these days of computers and centralised records the information available to courts--especially magistrates courts, but also Crown courts--is less extensive than it was, say, 20 years ago. The answer to the hon. and learned Gentleman's second question is that I hope so.
We have welcomed the Bill. Although it may be the last of the Home Secretary's 27 points to be implemented, it should by no means be the last of any series of reforms
of the criminal justice system. I do not want to be controversial in the context of this debate, but everyone must recognise the seriousness of the problem that too few offenders end up in court. Crime has doubled in the past 17 years, while the number of those convicted or cautioned for offences has fallen by 6 per cent., and the number of convictions has slumped. Convictions as a proportion of serious crimes fell alarmingly between 1980 and 1994: for rape, from 37 per cent. to 9 per cent., and for domestic burglary, from 9 per cent. to 3 per cent.On the issue of rape, I greatly hope that it will be possible to make amendments in Committee to ensure that those who are guilty of charges of rape are more likely to be convicted of them.
Two changes need to be made in this context. First, the Sexual Offences (Amendment) Act 1976 needs amending to eliminate questions about a victim's sexual history--for instance, about past abortions and early sexual relationships which are not relevant to the immediate case. That was recommended by the Heilbron committee. Secondly, it seems to us that there should be proper application of so-called similar-fact evidence, so that where the defendant is accused of more than one sexual assault on different women in similar circumstances, the cases can be heard together. There have been notorious examples of such cases being detached from one another. The result is that an accumulation of probative evidence cannot be built up.
Thirdly, the time is long overdue for reform of the Crown Prosecution Service. I referred in my opening remarks to the recommendations of the Philips royal commission, which reported to this House in January 1981 under Cm 8092. The royal commission said that there had to be changes to the CPS, adding that the last way in which it should be changed was the establishment of a single, national service. The commission went through the arguments carefully, and disputed the case for a single service at paragraphs 7.22 and 7.23:
Those were wise words--unfortunately not heeded by either party when the prosecution of offences legislation came before the House in 1986. In the light of experience, however, they certainly need to be heeded.
Although the courts have fewer cases to deal with these days, they are taking longer to deal with them. The proportion of remand prisoners dealt with by the Crown courts within the statutory time limit dropped from 84 per cent. in 1989 to 74 per cent. in 1994. There was a most revealing passage about delays in the report of the debate held in another place on 5 February, when the Minister explained that under the existing committal system, the 42-day pre-trial issues guideline for service of the prosecution's case appears to be met in only very few cases. The Minister said that, although no comprehensive figures were available, sampling suggested that as many as 75 per cent. of cases exceeded that period.
Instead of cracking down on the delays, Ministers answered that by proposing to substitute for the 42-day pre-trial guideline a 70-day period to reflect changed
circumstances. That is plainly unsatisfactory. Nor is it satisfactory that the costs of legal aid for criminal cases have rocketed--in a way that is not linked, as some defence lawyers claim, to changes in criminal procedures. The cost of criminal legal aid per defendant has risen in real terms by 127 per cent. since 1979-80. That is wholly unacceptable.
"Against this must be set the disadvantages that are likely to accrue from the bureaucratic nature of a large national organisation working in this area . . . We believe it to be hazardous to argue from the experience of other jurisdictions that a national prosecution service would be workable in England and Wales. We know of no common law jurisdiction in which the equivalent of a national prosecution system of the type we are discussing either covers an area with anything approaching the population of England and Wales . . . or deals with a crime load of anything like the same order of magnitude."
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