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Mr. Donald Anderson: Is this a trade union point?
Sir Ivan Lawrence: Yes; but it is one which raises resource implications.
One cannot put in a fee claim until all the proceedings are over and the person is sentenced. That matter was not taken fully into account when the Drug Trafficking Offences Act was introduced. We will therefore have to consider carefully the resource implications of changes. If one does not take a trade union point of view, there will not be many barristers left in the profession. That may be
the direction in which everyone wants to go--I do not know--but I am not sure that the system will be improved if we do away with the dual system of solicitors and barristers.
I hope that the points I have made about the Bill will be borne in mind during its passage through the House.I also hope that we may get some indications of good will from the Government about the manner in which those matters will be handled. I have explained my hesitations. I very much commend the requirement for pleas to be encouraged at pre-trial hearings, because that will speed justice in criminal cases. Provided that there is flexibility and understanding about why, in some cases, pleas are not ready for delivery, I have no doubt that it will be an improvement.
I commend the further weapon against jury nobbling, so that, where it is discovered, the guilty will not necessarily go free. That should further discourage people who may be tempted to pay dishonest people. There was a recent case of a dishonest ex-police officer who asked the family of an accused person for £25,000 in return for naming the jurors. The proposal for juvenile remands, provided there is flexibility, is very sensible, and will spare the trauma of repeat appearances in court for children. I also commend the proposal to give the judge the power to restrict reporting of false or irrelevant allegations made in mitigation proceedings.
Mr. Alex Carlile (Montgomery):
I am afraid that I am the fifth barrister of five speakers so far in the debate. I have practised at the Bar for the past 25 years--not exclusively but considerably, in criminal cases. After the speech of the hon. and learned Member for Burton(Sir I. Lawrence) I am tempted to give him 10 per cent. of my next fee in return for his eloquent, shop-steward-like efforts on behalf of the Bar, but he can do without the money, and I shall not weary the House by backing his undoubtedly correct complaint that payments, especially to young junior barristers, are too long delayed for legal aid defence work. In that context, the Government are among the worst late payers of debt.
We all have bad days. I have had a bad afternoon, because earlier I made two attempts to make a good point, and on each occasion made it badly. It is bad enough making a bad point badly, but making a good point badly is nigh unforgivable. So I should like to return to my point, which relates to part VI of the Bill.
I share the Home Secretary's view that jury and witness nobbling is extremely serious. I thought that, given his great 27-point conference speech, he was going to act toughly on it. In fact, part VI creates a procedural steeplechase for the prosecution before a case arising out of jury or witness nobbling can take place. As the Lord Chief Justice said in the other place on Second Reading, it is very important to ensure that the double jeopardy rule remains effective. It is extremely important to ensure that, wherever appropriate, people do not suffer the risk of double jeopardy on criminal charges.
However, as I meant to convey in my interventions, there may be cases in which clause 45(1)(b) cannot be satisfied because the nobbler of juror or witness will be dead as a result of the sort of gangland warfare that occurs in such cases, or will conveniently absent himself from the jurisdiction. I hope that, in his winding-up speech, the Minister will say that the Government are prepared to consider those circumstances, and examine whether tainted acquittals might not be addressed in that context. It is not a fanciful state of affairs at all.
I am a little concerned about the language used in debates on disclosure. It seems to be a fashion to have at one time more disclosure, and then for the pendulum to swing towards less disclosure. I suspect that, if we are witnessing such a swing of the pendulum, we may, as a result of efforts of people such as the redoubtable hon. Member for Sunderland, South (Mr. Mullin), see the pendulum swinging back the other way in a few years' time, towards more disclosure.
I hope that the Bill, which makes a sensible and creditable attempt to address the issue of disclosure, is not simply regarded as part of that swing of the pendulum. Rather, it would be gratifying if the House for a change produced a piece of legislation that stood the test of time and provided a continuum of rules on which sensible disclosure jurisdiction could be exercised by the courts.
I support the Bill in principle, but not the Home Secretary's rhetoric. I do not believe the Home Secretary's rhetoric that the Bill will have a significant effect on the catching of more criminals--it may or it may not. If we get the Bill right by the time it has completed all its stages, it is likely to strengthen the fairness of the trial process to both sides--the defence and the prosecution.
I am troubled when I hear adjectives such as "robust" used about judges. So far in this debate, the only references to robust judges have been premised by the assumption that robust judges make rulings in favour of the prosecution. It is my view, and certainly the experience of practitioners, that robust judges are sometimes needed to make rulings in favour of the defence, too.
Indeed, the subject, especially someone who is innocent and charged with a criminal offence--believe it or not, that happens from time to time--may be given protection by robust judges on whom he can rely for good judgment where necessary in favour of the defence. So let us not knot ourselves up in political rhetoric about important issues. We should approach the Bill on the basis that it is worth having only if it improves the investigation and the trial of criminal offences.
On improving the trial of criminal offences, I have one great disappointment about the Bill that relates to victims. I am surprised that the Government, who have had much to say about victims--much of which I support in principle--have not seen fit to include in the Bill, particularly in the part dealing with pleas in mitigation, a provision for victim statements to be made available to the court in all serious cases.
Last week, I chaired a multi-disciplinary victim support seminar in Llandrindod Wells in mid-Wales, in which it was the view of all involved--the seminar included very senior representatives of the police and the Crown Prosecution Service--that a victim's statement before each court considering a serious offence would assist the
judge in passing a just sentence. One of the points made was that a victim's statement would help the judge to assess whether the plea in mitigation put forward by the defence counsel or the defence solicitor was based on honest instructions.
We have a well-established procedure, although it is not used as much as it might be, for what are called Newton hearings. In a Newton hearing, which arises when there is a guilty plea, the judge can hold a hearing to assess the factual truth of assertions made, and in particular the basis of the guilty plea. The introduction of victim statements would enable judges to be much better informed when deciding whether a Newton hearing was necessary. So it is a disappointment that that is not included.
However, other aspects of the Bill are welcome. In dealing with issues of disclosure, I feel bound to take us back to the most fundamental question of all about criminal trials: what is a criminal trial? What is it trying to achieve? There is a common misconception that a criminal trial is some form of public inquiry--a Scott-type inquiry, perhaps, starting with a clean sheet of paper, seeking to discover the truth and occasionally finding it.
In reality, a criminal trial does not involve a search for any absolute form of truth; there is no search for the holy grail of what is true. A criminal trial is an exercise designed to decide whether the evidence produced by the prosecution is sufficient to make the jury, or the magistrate, sure that the defendant is guilty.
A criminal charge is not brought to trial unless it passes the tests set by the rules laid down in its clear published code of practice by the Crown Prosecution Service, led by the Director of Public Prosecutions. Those rules require there to be at least a 51 per cent. prospect of success, in the prosecution's assessment, before the case is brought. So, as the hon. and learned Member for Burton said, when a trial starts, the dice are, in effect, loaded against the defendant.
Although there is theoretically a presumption of innocence, in many minds there is a presumption of guilt. The danger is that the police, too, may be loaded with a presumption of guilt. The hon. Member for Sunderland, South has discovered that that occurred in at least two extremely important cases, and I know that he has been working hard on another, which the Home Secretary has so far refused to refer back to the Court of Appeal for a second time.
We must therefore try to ensure that the disclosure procedure does not, as I said earlier, swing the pendulum back to stack the odds unfairly against the defendant. However, in my experience, especially when appearing in front of the more modern type of judge rather than the lions of an earlier generation, disclosure is a pretty good idea for the defence as well as for the prosecution. The experience of those who have practised in recent years is that, if a defendant, through his lawyers, places a skeleton argument or a case summary before the judge, even before the trial starts, a clearer version of the defence is put to the jury before the trial ends.
Of course, a case statement by the defence requires a reasonable degree of disclosure by the defence. It can do no harm, provided that the rules are even-handed. The rules provided in the code of practice, which is now in
draft form and accompanies the Bill, seem fairly even-handed, but I have one concern about them that ought to worry the police.
The code of practice involves another bureaucracy, another burden of form-filling and book-keeping for police officers. It is to be hoped that there will be civilian support to enable police officers to concentrate on the investigation rather than on the disclosure provisions, which could be time-consuming. Well-organised police stations now have strong civilianised clerical support, and that will be needed to deal with a regime that I understand will apply to every case, however big or small.
Given sufficient support for the police, and given that the defence is allowed sufficient legal aid to pursue its reasonable inquiries within the disclosure regime, much of what has been provided should work. However, I have two specific misgivings about disclosure process.
The first question is: how are we to test whether the prosecutor has carried out his duty properly? It will not be possible for the defence to do that, although it may be possible for the scrutiny to be carried out by the new Criminal Cases Review Commission, when it comes into being--although it will probably take years for any case to receive such scrutiny, because it is in the nature of such cases to take a long time to come to fruition if there has been inadequate disclosure.
I therefore ask the Government what sort of audit or quality control will be carried out. Have procedures to ensure that there will be quality control already been drafted by the inspectorate of constabulary, and will they be carried out in every force and every division? It is important to be reassured that the regime will be followed properly, when the defence is in no position to examine what happens as closely as it might wish.
My second misgiving is more specific, and concerns the schedule of unused non-sensitive material. That must be sufficiently detailed to enable the accused and his advisers to make a judgment about the relevance of the material listed for their use.
We have already heard about the issues connected with pleas in mitigation. In an intervention, I referred to the fact that antecedent officers have now been removed from Crown courts. In my view, that was a seriously misguided economy. In the past, such officers, usually at least of the rank of sergeant, and sometimes inspector, were prepared to carry out inquiries.
Typically, I have known of cases in which a defendant has put forward in mitigation the claim that he has a home and a job to go to, but when that has been checked by the antecedent officer in the court, it has been found that the defendant was telling the truth about neither. Such a liaison facility no longer exists in most courts. Such inquiries are not part of the job of the probation service, nor is there any court official to carry them out. Making them is not part of the task of the CPS either. It would be welcome if the Government decided that, for the sake of the more accurate disposal of criminal trials, antecedent officers were to be restored.
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