Examination of Witnesses (Questions 142
- 159)
TUESDAY 19 NOVEMBER 2002
MR PETER
ROOK, QC, MR
ROGER SMITH,
MR PETER
BINNING AND
MR RODNEY
WARREN
Chairman
142. Good morning. As you know, we are attempting
a little pre-legislative scrutiny of the Criminal Justice and
Sentencing Bill. Our difficulty is that it is not published yet
and, therefore, we are having to do it, to some extent, blind,
although much of what is in it has been flagged up for some months
now so we are not entirely in the dark. We are not seeking four
answers to every question, because that would keep us here all
day. You be the judge; if you have something extra to add by all
means do so, but do not feel obliged. For the record, can I ask
each of you to say where you practise, what you specialise in
and who you are representing, very briefly.
(Mr Binning) I am a criminal solicitor.
I specialise mainly in the field of financial fraud cases and
regulation. I am representing JUSTICE.
(Mr Smith) My name is Roger Smith. I am a solicitor,
but I am the Director of JUSTICE, and I represent the members
of JUSTICE and the interests of justice.
(Mr Rook) Peter Rook. I am Chairman of the Criminal
Bar Association. I both prosecute and defend, particularly in
fraud and sex cases.
(Mr Warren) My name is Rodney Warren. I am a solicitor.
I am a duty solicitor and that means I work in the police station
and magistrates' court, but do deal with cases in the Crown Court.
My practice is on the south coast. I am here because I am on the
main board of the Law Society and represent the Law Society. I
am also a Director of the Criminal Law Solicitors Association.
Mr Cameron
143. We are going to try to get some shape to
our inquiry by asking you the bits of the White Paper you most
object to, and the bits you are looking forward to and are excited
about. The Speaker has recently told all of us that our questions
and answers have to run no more than a paragraph in Hansard: we
cannot, I am afraid, limit you to that, but because of what the
Chairman has said, could each of you say, first of all, what you
find most worrying in the White Paper that you expect to go into
the Bill?
(Mr Binning) First of all, I am speaking as a member
of JUSTICE and we are, therefore, responding to this Committee
for JUSTICE. The concerns that we have in relation to this Bill
are fairly widespread, it has to be said. This is another in a
long, long line of criminal justice bills which we have had to
deal with in the last decade. There are some worrying aspects
of it, particularly the focus on disclosure, and the apparently
perceived problems with the defence in relation to disclosure,
as opposed to the prosecution. The other areas, I would say, that
are problematic are the proposals to change wholesale the law
of evidence in relation to hearsay, the admission of previous
convictions and, further, the changes in relation to double jeopardy
and jury trial in particular.
144. It does not sound like there is much in
there that you do like. Mr Smith, how would you rank those? You
have got disclosure, law of evidence and double jeopardy?
(Mr Smith) I was actually thinking of a slightly different
way of answering your question, but I will come back to that.
What are we most concerned about? Firstly, a series of procedural
reforms which are proposed in the Paper, which Peter has outlined;
and we will no doubt go into the detail of how we rank those.
Secondly, our area of concern is where we agree with the White
Paper and the Government in terms of the aim of policy—which
is to empty the prisons of those on short sentences—but
we fear that the provisions which are in the White Paper and put
in the Bill will, in fact, have the opposite result. Our concerns
are twofold. We do not like some of the procedural proposals;
we agree with the sentencing line but we just think it will not
work.
145. On the specific point about filling up
the prisons, is it because of the extra powers given to magistrates;
or is it because you think actually the more people who get to
court, the more people will be convicted and there will be more
people in prisons—which some people would think was not
such a bad thing?
(Mr Smith) We fear it will be a result partly of the
rhetoric deployed by the White Paper about crime and we have to
do something, and that is going to push up sentences; and, secondly,
it is the experience of the Criminal Justice System that you bring
in reforms, beginning with suspended sentences, and you aim them
all the time at the highest sentences, and you are trying to get
people to sentence lower but what actually happens is the reverse
and sentences get more extreme and worse.
146. There is a list of theoretical points or
practice points, and there is a consequential point of the Bill.
Mr Rook, the Criminal Bar Association, how do your members come
at the White Paper, and what do you most object to?
(Mr Rook) The way we approach it is, we support all
good measures unless they, in our view, would compromise a fair
trial and/or undermine public confidence. I share the concerns
of those who have just answered your question. We are particularly
concerned about the planned erosion of jury trial, which we view
as erosion simply on expediency. We have a system of jury trial
for all serious offences—we believe it should remain, for
a number of reasons both of principle and practical.
147. Mr Warren, with your experience in the
police station, do you have a particular list of things you are
concerned about different from the others?
(Mr Warren) I do not think that they are greatly different;
but certainly we have concerns about those areas which would,
we see, disadvantage the defendant in a way that is not necessary.
In particular, there are concerns over proposed changes to the
rules of previous convictions going before a jury; the possibility
of disclosure of expert evidence; and other areas that relate
to the trial. I think that, to separate out from other things
you have already heard, would be our area of greatest concern.
148. This may be a strange thing for a Conservative
Member of Parliament to ask, but to what extent are you concerned
that you are all being quite conservative? You all seem to be
arguing for the status quo, and with these supposed changes the
aim is to make the system more efficient and effective. Are you
concerned that you are slightly sounding like you do not really
want anything to change? Mr Rook, the Criminal Bar Association
opposed all the changes to the right to silence, but has it really
been such a bad thing? Are there not some reforms here which we
do need?
(Mr Rook) Certainly the reforms proposed in relation
to victims, making juries more representative and so on, receive
our support. I do not really think you can say that you are being
conservative if you believe that certain fundamental liberties
should not be eroded.
149. If other people would like to mention things
they actually welcome that are in the White Paper that you hope
to see in the Bill which you think would be a positive step forward?
(Mr Binning) I think the point which has just been
mentioned by Mr Rook is important, that juries have become less
representative. I think if measures can be sensibly put in place
which make juries more representative that is for the good. JUSTICE's
response in particular on that is that care should be taken to
ensure that, for example, those with families are adequately accommodated
by the compensation awarded for jury service. That is a particular
point we make.
(Mr Smith) The emphasis on victims and witnesses;
the suggestion that there might be some progress in relation to
restorative justice, on which we are doing some work and has some
interesting possibilities; relief, if not welcome, that there
is going to be no third tier courts; and acceptance of increased
jurisdiction of the magistrates' court, subject to protections
to stop there being `sentence creep', the extension of sentences.
Finally, there is the import of the Government's policy to reduce
the population in prison—there is some concern as to the
practicalities of how it can be done.
150. One specific question for JUSTICE. You
say that the White Paper "lacks a principled base to its
arguments". Is there anything wrong with taking a pragmatic
approach and actually looking at the system?
(Mr Smith) It is best when principle and pragmatism
go together. For instance, we will come to pre-charge conditions
on bail and the restrictions on bail. If you take up the principle
position, you understand what bail is about: it is about getting
someone to turn up at court at a time they are required for trial;
it is about stopping re-offending in the interim. To take the
principle: the big problem to reasonable decisions on bail, as
I guess every witnesses you hear will tell you, is the police
national computer. The data is not clean enough—which we
know for other reasons, in terms of the attempt to extend its
use. If you could get the data cleaned up, so there was accurate
information before the court, you would get better determinations
on bail; which may mean that you do not have to move on to changing
the procedural safeguards that exist. In terms of a logical approach
to policy, principled, practical analysis of what is going on
and pragmatism, yes, but it has to be a three-fold movement.
151. When the Government came to office about
1:25 crimes ended up with a conviction; that figure is now 1:40.
The Government say that the system is basically flawed, needs
huge reform and it is not working. Do you line up with them and
say, "Yes, fundamental reform"? Or do you basically,
in your heart, think actually the Criminal Justice System is working
pretty well and just needs some tinkering?
(Mr Binning) I think that the Criminal Justice System
has had an awful lot of change over the last decade; it needs
some time to settle down, particularly in some pretty key areas
such as disclosure. The answer is, yes, it needs some slight changes
but no vast changes.
(Mr Smith) I agree that it does not really need major
legal change. I think there are things you can do in terms of
supporting the witnesses and victims which would make an enormous
difference. They do not particularly need legislative change;
what they actually need is money.
(Mr Rook) There is a great deal that could be done
simply with what we have now without any further legislative change.
So many problems should be addressed: getting defendants in custody
to court on time; warning prosecution witnesses properly; disclosing
evidence properly. What is more, as far as trial management is
concerned, judges do have the power at present to distil issues
between the parties, to be more interventionist. Of course I recognise
there are always valuable changes that can be made; but I do not
necessarily accept there has to be wholesale change. We can only
deal with in the courts the cases that reach us.
(Mr Warren) I think that is important—you can
only deal in the courts with the cases that reach the courts.
I think there has to be a concern that if the investigative stage
in the procedure is not as effective (which is what those figures
suggest) there is perhaps a concern that the attention should
be changed and refocused on the Criminal Justice System, and thereby
weakening it to try to adjust and compensate for investigative
failures.
Mr Cameron: A lot of it is about getting
the charge right, which I am sure we will come on to. Thank you
very much.
David Winnick
152. Following on from what Mr Cameron has just
asked you, do you accept that the legal system in this country
is biassed against the victim; and far too many people are just
getting away with it, arising from the system in play at the moment
and moreover, as is sometimes put, "very clever lawyers defending
those who are accused of serious crimes"?
(Mr Smith) The question comes in two parts. One, do
I think that more can be done to assist the victims and witnesses,
yes. In the language being deployed in this case, should the Criminal
Justice System be re-balanced to justice and witnesses in that
regard, yes. Does that involve necessarily or practically any
attack on the presumption of innocence and the protections for
innocence that we have in this jurisdiction, no.
(Mr Rook) In our view there is too much talk of winners
and losers in the Criminal Justice System. What matters is the
integrity of the trial process, and the integrity of the verdict.
I think the vulnerable witnesses' legislation—which came
on line in the Crown Court in July and is important legislation
which the Government got right, although there will be teething
problems—shows that you can take measures to assist victims
without necessarily eroding a defendant's rights. You have always
got to be careful that they are not eroded.
153. Indeed, I do not think that would be in
dispute. The accusation is also made that here is the legal profession
determined to defend (unfairly, no doubt) what are described as
"restrictive practices"; determined to defend the status
quo under any circumstances; and the evidence which you have submitted
for organisations, do tend to give the impression that change
should be the very minimum and certainly not along the lines of
what the Government is proposing?
(Mr Rook) I would suggest that that is not a correct
view. There are many areas where we are in favour of reform, such
as vulnerable witnesses. As I have said before, to cast it as
being resistant to change and conservative simply because we feel
it must be right to retain jury trial cannot be right.
(Mr Smith) JUSTICE does not represent the legal profession.
For instance, we do support the extension of the magistrates'
court jurisdiction. We do not stand adamantly by the status quo.
I do think we have a slight sense of holding onto nurse for fear
of something worse, that once you attack fundamentally entrenched
protections in this jurisdiction then you begin to have problems.
We think there is a cogent argument in relation to jury trial.
There is a cogent argument for saying, "Why should somebody
not choose to be tried by judge alone?" That is a cogent
and reasonable argument. We think it is outweighed by arguments
on the other side, which we no doubt will come to. Our position
is not really dug in and entrenched on all these provisions; but
on balance, and on a rational discussion, we support maintenance
of jury trial for serious crime. We are, in fact, in favour of
an extension of magistrates' courts provided we can deal with
the problems potential to sentence creep.
154. You will be asked by my colleagues about
various aspects through questioning today, but do you believe,
arising from what you have just said, that if the Government proposals
go through and are implemented that would mean undermining the
changes of a person receiving a fair trial?
(Mr Smith) I think there is a significant danger to
some of these. These proposals are a mixed bag. Those which are
about procedures seem to us sufficiently dangerous to raise that
possibility.
155. Is that the view of the other three of
your colleagues?
(Mr Rook) In certain areas, yes.
156. No dissent from that?
(Mr Warren) No.
Bridget Prentice
157. You have already raised the issue of bail
and I want to look at that aspect in more detail. Have any of
you got any objection in principle to having a power to impose
conditions before bail?
(Mr Warren) Yes—concern. The concern is that
whilst conditions of bail imposed by the custody officers in the
police station can serve a useful purpose, to control perceived
risk on the part of the person who has been arrested and their
future conduct while the investigation continues; whilst there
can be some benefits to ensuring that there are restrictions on
their liberty (which is what conditions of bail amount to), there
is also an inherent concern. We feel that it is a process that
could be abused by custody officers and the police in the course
of investigation. If they arrest people they suspect of committing
offences part the way through an investigation, and bail and then
extend their bail on a continuing basis with conditions of bail,
it amounts actually to a restriction of their liberty, without
going to court. There is that concern. On the other hand, it is
acknowledged that there are distinct advantages. There are advantages,
for instance, in cases where an investigation is not complete,
the defendant might otherwise be charged by the police because
there is a need perhaps to protect the victim. Conditions might
be imposed which would overcome that difficulty. For instance,
a requirement to live in a different town and not to contact can
save the need to remand in custody over a very short period of
time. I think the greatest concern, as I have said, is that it
could be open to some sort of abuse in the way I have suggested.
There is also acknowledgement that the charging pilots, where
the Crown Prosecution Service now have a responsibility for deciding
upon the charge, do tend to suggest that the only logical process
that can be adopted to allow a more detailed investigation of
the case before charge to proceed adequately is to have conditional
bail; so that that process can take the time that it requires
to be taken, rather than it being hurried. That is almost an ambivalent
answer. We understand the need for it and are in favour of it,
but we have reservations and there has to be some caution. There
has to be a clear and precise process of appeal. There has to
be adequate funding of that appeal. In other words, the legal
aid provisions must make specific authority for it to happen.
At the moment it would not work. There needs to be a clear time
limit on the period over which the bail might be made to exist
on a conditional basis.
158. Does anyone have any differing views?
(Mr Smith) Mr Warren has gone to the particular in
your question. You asked the general question about conditions.
Do we have any problem about the conditions on bail? No, not in
relation to those set out in the European Convention to prevent
re-offending, to deter flight and ensure appearance at court.
In principle, no. The question is: are the conditions imposed
reasonable?
159. Let me put this way: the Association of
Chief Police Officers, who have given evidence to us already,
have in some ways gone down the same route as you. They have suggested,
for example, a time limit of four weeks; that there is judicial
oversight; and a system for appeal as the crux of their argument.
Would you go exactly with them, or would you want something more
than that?
(Mr Warren) I do not think one could search for a
great deal more. We have to accept, of course, that in current
practical terms if the police decide that they will, instead of
bailing to consider their case, charge at that moment when the
decision is made and detain a defendant in custody, they will
be putting them before the next available court, when the courts
will have the power under the current law to impose conditions.
I take the concept of imposing conditions of bail as read, because
it would happen effectively the next day, if it does not happen
in front of a custody officer. The question is, whether it is
a good idea for the custody officer to have that power a day earlier
and instead of the court.[1]
The answer that you have provided from the Association of Chief
Police Officers is an effective route, in my view, as a balance.
The question of whether or not four weeks is the right period
of time is a matter of judgment for us all; but it does not seem
to me to be unrealistic.
1 Note by witness: In other words, police already
have the power to impose conditions of bail after charge. The
question is whether it is appropriate to allow them to impose
conditions before charge, at an earlier time in the process". Back
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