Examination of Witnesses (Questions 300
- 319)
TUESDAY 26 NOVEMBER 2002
LORD FALCONER
OF THOROTON,
QC, MS CECILIA
FRENCH AND
MR IAN
CHISHOLM
300. So you are saying it will help reduce multiple
adjournments?
(Lord Falconer of Thoroton) That is very much what
it seeks to focus on by, as I say, better prosecution preparation;
better focussing on the issues; and better disclosure.
301. The other big issue is the protection of
witnesses. How would the Bill assist with that?
(Lord Falconer of Thoroton) The Bill does not specifically
deal with the protection of witnesses, although it is a very big
issue both in terms of low level intimidation—simply people
feeling that the community will be "against them if they
give evidence"; and also in cases where crimes of violence
have been committed and one or two defendants in the neighbourhood,
or their associates, are able to physically intimidate witnesses.
That is a combination of two things: one, a policing issue; but,
two, people having confidence that the court will be able to see
through attempts to delay the process; because all too frequently
in those cases one finds, at the very last minute, sick notes
being put in which are not properly looked at. Judges tend to
be robust but there needs to be a process whereby there are no
other opportunities within the system for the defendant to wriggle
out of the trial; because the longer the delay between arrest
and charge and the trial actually taking place, for those people
who do intimidate witnesses, the longer their opportunity to intimidate
people and ruin their lives when they are simply witnesses in
a case.
302. How does this Bill deal with that point?
(Lord Falconer of Thoroton) Only in relation to better
preparation by prosecution so there are no prosecution delays;
better disclosure by defence, so defence cannot seek to say, "We
want to look at another avenue". As far as sick notes, "I'm
suddenly ill", are concerned, that is a matter which the
Bill does not deal with but the judges have to be robust in relation
to; and I think by and large they do tend to be robust, but in
many cases it proves too difficult.
Mr Singh
303. Whilst I agree, and I am sure many of us
agree, that the justice system needs an overhaul and its administrative
procedures need to be improved, how is it going to come about
when some of the proposals seem to me only to erode or undermine
defendants' rights? For example, taking away partly the right
of trial by jury, greater admission of bad character evidence,
greater admission of hearsay evidence. These things seem to me
to undermine defendants' rights and do nothing to improve administration
of the justice system?
(Lord Falconer of Thoroton) It is a balanced package.
It is not about eroding defendants' rights; it is making the system
work better. For example, one of the things I referred to in relation
to the Chairman's question, getting the CPS to formulate the charge
will mean that where a case is going nowhere that will be identified
much more quickly than it otherwise would. Making sure that the
CPS and the police get together at an earlier stage and properly
prepare cases will assist the defence, because it will ensure
that the proper evidence is available. Making it clear at an early
stage what the discount in sentence is for a plea of guilty will
assist the defendant in determining what his rights are. Making
sure the defence identify at an early stage what the defence is.
All of these things help an orderly process. It is not about eroding
defendants' rights; it is making the system work much better.
304. One of the changes is the extension of
the time limit for detention from 24 hours to 36 hours for non-serious
offences. Why do you think that is necessary to introduce?
(Lord Falconer of Thoroton) The purpose of that was
there was a detailed review of how the PACE provisions operated.
It was in the context of seeking to reduce the bureaucracy that
arose in relation to the police. It was not felt that it significantly
eroded civil rights in any way. It was a sensible move to balance
the rights of the defendants against the need for a proper investigation.
(Mr Chisholm) If I could just clarify that point.
The current law allows detention for up to 36 hours under the
authority of a superintendent for any serious arrestable offence;
the Bill extends that to any arrestable offence. It is not a major
change in principle, but just extending the range of offences.
305. Is there any evidence from current practice
that there is a problem with the 24 hour limit for these other
offences you have mentioned?
(Mr Chisholm) As Lord Falconer said, this came out
of the review of PACE, which did suggest that it was a good idea,
and desirable from the point of view of the police doing the investigation,
to have the extra 12 hours for all arrestable offences, so it
was based on that review.
306. That may be the case, but can you give
us some specific examples of the difficulties which the 24 hour
time limit poses?
(Mr Chisholm) As the ACPO representatives who gave
evidence to the Committee at the first hearing indicated, quite
often if it is a period at weekends or at night you cannot get
hold of key people, and it just gives the police a bit more time
to do the investigation, and to decide what to do at the end of
that period in relation to the suspect. That is practical policing
investigation timing.
307. There is a proposal also to bring in street
bail. Would that not solve the problem that you want to solve,
of the extensions of the time limit?
(Mr Chisholm) The proposal for pre-trial bail has
arisen out of the street crime initiative, and also out of the
charging pilots—this transfer of responsibility from the
police to the CPS. It is limited to a situation where the police
officer, the custody sergeant, usually considers that the suspect
should be charged, but under the new arrangements he will not
be making the charge, he will be referring it to the CPS, and
then able to give the suspect bail. At present the police can
give a suspect bail but without conditions; this will be with
conditions but with the consent of the suspect. If he chooses
not to cooperate or agree with the conditions then, under the
arrangements with the CPS, the police will have to do a preliminary
charge and then get into the normal bail regime as now—where
it will go to the court for a decision whether to remand on bail
or custody. I think there are considerable safeguards there. It
is only with the consent of the suspect.
(Lord Falconer of Thoroton) I think street bail is
dealing with something different. Street bail is dealing with
a situation where you arrest a defendant if you are a police officer;
under the current rules you have to then take the defendant to
the police station and he or she can only be bailed from there.
The street bail proposal permits the police, instead of having
to take the suspect to another place, to allow that suspect to
be bailed from the place which would not be a police station in
this hypothesis, and that seems sensible. I do not think it really
addresses the question that you are asking about why extend to
36 hours?
308. Why do both?
(Lord Falconer of Thoroton) There is a separate problem
in relation to—what is the point of taking the defendant,
or the person arrested, to the police station. Separate question:
why extend in relation to arrestable as opposed to very serious
offences from 24 hours to 36 hours? The answer is: it helps the
police in the sense that it does not require certain protections
to be gone through until 36 hours. We do not believe that that
significantly erodes people's civil rights. The balance between
the ability to investigate against the defendant's civil rights
is not, we think, put in the wrong place.
309. Parliament will be extremely concerned
about the proposal in clause 7(1) to limit the consultation on
Codes of Practice. Codes of Practice are very, very important
documents. It seems that under these proposals the Home Secretary
will only be required to lay the Codes or revised Codes before
Parliament without any consultation. Parliament will be concerned
about that. What is the justification for that?
(Lord Falconer of Thoroton) There is a specific requirement
in clause 7(4) for consultation with police authorities, chief
officers of police and such other persons as he thinks fit. That
would plainly embrace a wide range of people, such as lawyers,
such as people representing victims, such as people representing
courts, the range of people whom one would expect to consult in
relation to that. The reason why it is such persons as he thinks
fit is because the range is so wide beyond the police; and the
precise people whom one should consult do not readily fall into
the same category as 7(4)(a) and (b) which are police officers
and police authorities.
310. Will there be any role for Parliament in
this consultation process?
(Lord Falconer of Thoroton) Of course Parliament will
be consulted, because the Code has to be laid before Parliament.
The Secretary of State must lay any revision to a Code before
Parliament.
311. That is the only requirement—to lay
it before Parliament. I do not think there is any procedure, as
at present, that will need an affirmative resolution.
(Lord Falconer of Thoroton) The intention would certainly
be that Parliament would be properly consulted in relation to
any such Code.
Chairman
312. So why is it being changed from an affirmative
procedure to a negative one?
(Lord Falconer of Thoroton) Because many of the changes
that take place in relation to the Code are of a procedural, administrative
convenience level which, on any reasonable view, do not significantly
change what the substance of the Code is. One can see improvements
that can be made from time to time where having to go through
the sorts of procedure that currently exist would be disproportionate
to the sort of change that is being made.
313. Are you saying that if any significant
change is made to the procedures they would be subject to an affirmative
procedure?
(Lord Falconer of Thoroton) I am not saying that,
no. I am saying they would be subject to proper consultation,
including proper consultation of Parliament.
314. It would be an affirmative procedure, I
assume?
(Lord Falconer of Thoroton) That is not what is provided
for in the Bill. It would be a process whereby the Secretary of
State would obviously satisfy himself beforehand that there had
been proper consultation with Parliament. The reason why the change
is there is because, as I say, the exact extent to which there
should be necessary consultation depends upon the nature of the
change.
315. I think everybody can understand if it
is just a minor tweaking or a minor procedural point; but we get
a bit twitchy when we think it might be something more substantial
than that.
(Lord Falconer of Thoroton) I can understand that.
It would plainly be the Home Secretary's intention that there
be proper consultation with Parliament. We do not think it is
necessary to go as far as to say there needs to be an affirmative
order in cases of significance. We believe that the situation
will be sufficient to ensure that Parliament will be properly
consulted.
316. Might you just think about inserting some
word like "significant" in there and "affirmative"?
(Lord Falconer of Thoroton) Of course, yes. You can
see what our intention is in relation to that.
Chairman: We can see what your intention
is but, as I say, Parliament gets a bit twitchy when this happens,
as it does quite often these days.
Bridget Prentice
317. Good morning, Minister. Talking about bail,
why is it necessary for the police to have powers to impose conditions
on bail before charge? It has been put to us, for example,
that a holding charge would be given and then you impose conditions
later. Why do you have that in?
(Lord Falconer of Thoroton) The bail provides that
that power will only be used where the police think that there
should be a charge but they are awaiting the view of the Crown
Prosecution Service as to whether to charge or not. In terms of
the defendant, what the particular views that you are expressing
involve is, in effect, let the police charge even though ultimately
the Crown Prosecution Service decide that there should not be
a charge, so that they can impose conditions. From the point of
view of the defendant it seems much more sensible that the police
have power to impose conditions, and those conditions would be
sensible things like, "Don't go near the main witness",
if, for example, it is a domestic violence case or something like
that. You can do it without the need for a charge, which may then
never go anywhere. It is not in any way detrimental to the interests
of the defendant. It permits for a pause while the Crown Prosecution
Service look into it; and it means that the defendant does not
get wrongly charged if the view from the Crown Prosecution Service
is that there is not the basis for a charge.
(Mr Chisholm) The conditions can only be imposed with
the agreement of the suspect. If the person does not accept the
conditions then, under the arrangements that the Director of Public
Prosecutions is agreeing with the police, the police will do a
holding charge and then bring the suspect before court in the
normal way. This is an example where one looks and sees the Bill—it
is not quite as extreme as perhaps has been presented. Obviously
I know you have not had the Bill before, but it is a pretty limited
measure and with the consent of the suspect.
318. With the consent of the suspect is clearly
an important part of that because some of them may not actually
in the end be charged at all.
(Mr Chisholm) Indeed.
319. You have mentioned it would be the custody
sergeant and again it has been put to us that it really ought
to be a more senior officer who makes that decision and who actually
imposes those conditions. Have you considered that; and have you
considered things like time limit?
(Lord Falconer of Thoroton) As far as the custody
sergeant is concerned, we think he or she is experienced; it is
an appropriate level at which to do it; it requires the consent
of the defendant. We think there are enough protections built
in there; and we think in many respects this will be a provision
which actually helps a person who may not in the end become a
defendant at all. We also think it will help, for example, victims
where the condition is, "Don't go near the person who might
have been the complainant". As far as time limits are concerned,
we do not think it is appropriate to put time limits in the Bill;
but plainly it would be open to the defendant to apply to a magistrates'
court to have the condition discharged if it goes on for too long.
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