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Mr. Alistair Carmichael (Orkney and Shetland) (LD): I beg to move amendment No. 7, in page 4, line 13, leave out clause 7.
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Mr. Deputy Speaker (Sir Alan Haselhurst):
With this it will be convenient to discuss the following amendments: No. 14, in page 4, line 29, clause 7, leave out
'a term not exceeding 5 years'
and insert 'life'.
No. 15, in page 4, leave out lines 31 and 32.
Mr. Carmichael: May I say how good it is to be with the House at last? I understand that, courtesy of my hon. Friend the Member for Montgomeryshire (Lembit Öpik), the House has been kept well advised of my progress southwards through the country. I do not know whether the problems of travelling to and from the northern isles or the problems of Northern Ireland will be the first to be resolved, but I suspect that neither outcome will be quick. I am grateful to my hon. Friend for his assistance at such short notice today. I can at least say that the fog has cleared and I am here. If I were less kind, I might say: I am here, so the fog will now clear.
Clause 7 was the subject of one of the more interesting parts of our debates in Committee. I have remarked in the past on the tendency of this and other Governments to criminalise conduct that is already criminal. Part of the Minister's justification for the clause, both on Second Reading and in Committee, was that the creation of offences of this sort would send a signal. That is worth considering, and it is worth asking exactly what signal clause 7 is likely to send. As we heard in Committee, the fact is that it signals that an attempt to pervert the course of justice by influencing a prosecutor is somehow a lesser species of the existing common law offence. The common law offence on indictment attracts a maximum penalty of life imprisonment, whereas the offence in the Bill has a maximum penalty of five years imprisonment, or a fine, or both.
In Committee, the Minister told us that he had researched the point and that the average sentence for the offence of perverting the course of justice was something in the region of 24 months, as I recall.
Mr. Spellar: May I clarify that? The average sentence is between four and 24 months.
Mr. Carmichael: I am grateful. That was about as helpful as the Minister got in Committee, and I hope that he can go a wee bit further tonight.
The range of four to 24 months where the maximum penalty available to the courts is life imprisonment is an interesting one to consider. If the maximum penalty goes to five years in prison, I would say that there will be downward pressure on the sentences imposed because the penalty will be assessed within the range available to the court. It will be interesting, if the clause is enacted, to revisit it in five or 10 years' time to see what the effect has been on sentencing, and compare that trend against the trend in other respects, my suspicion being that the average length of custodial sentences is increasing.
The clause appears not properly to appreciate the distinction that exists between the possible and the actual penalties imposed. Most worryingly, it betrays a total lack of understanding of the practicalities of work in the criminal courts. Often it may appear to a prosecutor who is preparing a case that this sort of
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offence is of a lesser seriousness and towards the bottom end of the scale. Only when the witnesses are in court and one can hear the evidence in its totality does it become apparent just how serious an offence may be. To limit the range of sentences available to the court to five years, as the Minister seeks to do, is to limit the range of disposals available to the court, which runs the real risk of miscarriage of justice, in that someone will not receive the full penalty that should be available for them.
In Committee, we asked the Minister why the Government had felt it necessary to introduce the clause. Is there a particular problem to which attention requires to be drawn? How many prosecutions have there been for attempts to pervert the course of justice by influencing a prosecutor in, say, the past five or 10 years? What problems encountered by the prosecution authorities or the courts in obtaining convictions in those cases mean that we now need a statutory offence? The Minister did not answer those questions in Committee, and I invite him again to tell me how many prosecutions there have been and what problems have been encountered. I suspect that the clause is a window-dressing exercise, a bit of padding to make the Bill be seen to be doing something even if it is something that is not necessarily pressing in any way.
7.45 pm
The amendment has been grouped with amendments Nos. 14 and 15, tabled by the right hon. Member for Upper Bann (Mr. Trimble). We agree with those. Amendment No. 14 is entirely on all fours with an amendment that I moved in Committee, and the points that I have already made apply to it with equal force.
From the point of view of the practicality of obtaining prosecutions and convictions, amendment No. 15 makes good sense. In relation to proving a charge under the clause, a hurdle is being put in the way of the prosecutor that does not exist for the common law offence. One can quite easily imagine that a prosecutor working under pressure and trying to meet deadlines will find himself or herself either forgetting initially to obtain the director's consent or, worse still, obtaining it but omitting to make proper reference to it on the indictment and therefore failing properly to specify the charge.
I have heard nothing on Second Reading or in Committee to justify the clause. Accordingly, I urge the House to delete it from the Bill.
Mr. Trimble: I pay tribute to the hon. Member for Orkney and Shetland (Mr. Carmichael), who drew this matter to our attention in Committee. I hope that the Minister has reflected on what was said there. All that the hon. Gentleman said was absolutely right. The clause, which the Minister says is intended to highlight a particular matter, in fact sends the signal that that matter is less important. By reducing the sentence and putting a procedural hurdle in the way, the clause will have completely the opposite effect to that which the Minister wants.
The most elegant solution to the problem would be to agree amendment No. 7 and delete the clause. I know, however, that the Minister is not a free agent and is not able to do that because the Government made promises to people that they would introduce clauses of the
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nature of clause 7, and I tabled amendments Nos. 14 and 15 to remove the limitations being placed on the existing offence and bring the clause into line with the more substantial penalties that already exist. The Government are reducing the penalties available for this form of perversion of the course of justice. I tabled the amendments knowing that the Minister is not a free agent so that he can keep his promises to others without having a perverse effect. I hope that he will do so.
Mr. Dodds: I support amendment No. 7 and welcome the hon. Member for Orkney and Shetland (Mr. Carmichael) for, in spite of his late arrival, proposing a very good amendment. I shall not rehearse the arguments that have been put, but the hon. Gentleman said that the clause was a piece of unnecessary padding added to the Bill, and that prompts the question that I have asked about a number of provisions—whether the Minister can explain exactly why the clause was added.
What representations have been made to him? Who has pressed him to introduce this superfluous and unnecessary provision? The Bill's origins lie in the Hillsborough discussions and the joint declaration. Is that really the best way to approach the drafting of legislation in such a crucial area?
Clause 7 is completely unnecessary as it replicates the common law offence. If the hon. Gentleman wishes to divide the House on the issue, he will have the support of my party.
Mr. Swayne: When, in Committee, I asked the Minister why he was troubling us with a new clause that was designed to remedy a situation that, he admitted, was inconceivable, he told me:
"I do not think that it is necessarily good practice to retain redundant legislation".—[Official Report, Standing Committee D, 25 March 2004; c. 62.]
Well if it is not good practice to retain it, it is worse practice to create it, but that is exactly what the Minister has done by creating a statutory offence when a perfectly good common law offence exists.
The Minister's excuse for doing so was given in Committee when he said:
"We are highlighting the seriousness of such an offence".—[Official Report, Standing Committee D, 1 April 2004; c. 90.]
It is a strange way to highlight the seriousness of an offence to reduce the potential sentence from life to five years. I hope that the hon. Member for Orkney and Shetland will press his amendment to a Division.
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