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In part 3 of the Bill we seek to recalibrate a little the test for quashing convictions in favour of the victim, not the offender. In any democratic country—the rule of law is a fundamental precondition for that description—there are two tests for the justice system. First, was the person guilty? Secondly, was the process followed in establishing that guilt fair and acceptable in a civilised society? Both of those tests are of equal importance. They lie behind the profound truth that justice must not only be done, but be seen to be done. Without them, confidence in the justice system would
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be significantly undermined. Yet adherence to those tests should not in turn undermine the very principles that they seek to protect.

Within the boundaries of fairness and equity set by the need to follow proper procedures, there should be scope for an approach that allows the Court of Appeal, when it is convinced of the offender’s guilt and is sure that procedural impropriety in the case has not led to injustice, to uphold the original conviction. Equally, we cannot and should not sanction conduct by agencies of the state that would egregiously degrade the rule of law. It must be open to the Court of Appeal in exceptionally serious cases of abuse of process to quash the conviction, even where the court is satisfied as to the appellant’s guilt or his or her guilt is not an issue in the appeal, as is more usual.

Earlier this year my right hon. Friends the former Lord Chancellor, the Home Secretary and the Attorney-General published a detailed consultation paper on the issue. Many responses were received, a summary of which is published today. Almost all the responses were critical of the drafting contained in clause 26. I can therefore tell the House that I am comprehensively reviewing the drafting of clause 26 as it is currently written. I intend to table a replacement, which I hope will meet the major criticisms made and the policy objective behind the clause.

The consultation has, however, brought out a separate issue: the need to clarify the law, so that when the Court of Appeal is dealing with an appeal relating to a conviction of many years standing, typically on a referral by the Criminal Cases Review Commission, it may do so on the basis of the law at the time of conviction. I shall bring forward amendments to cover that proposal too, which is sought by practitioners.

Mr. Marshall-Andrews: Briefly, I welcome my right hon. Friend’s approach to clause 26 and to what appeared to be an attack on the Court of Appeal’s right to allow appeals and to strike down convictions in cases of gross abuse of process. I know that he will take the view that there must be something in the new clause to allow the Court of Appeal to continue to do that in such circumstances.

Mr. Straw: I am grateful for the interest that my hon. and learned Friend has taken in the matter. When we bring forward the replacement I hope that it will meet the concerns expressed on both sides of the House and those of practitioners. He is absolutely right. It is true that in most cases, although not in all, where there has been not so much an abuse of process as an error of process, which might have been relatively serious but which still does not affect the justice of leaving a conviction to stand, the Court of Appeal will do that or will sometimes order a retrial.

However, I certainly accept that there are some examples—we can all think of them—where the abuse of process has been so outrageous that it would break the principle of the rule of law for the conviction to stand. Although that means that a guilty person has to walk free, I am afraid that that is the price we all have to pay if there is an abuse by agencies of the state. It is wholly intolerable in any democracy that the ends should justify the means. Achieving the right balance is what we all seek to do. I applaud the manner in which
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the Court of Appeal has sought to do that under the existing law, but I think that everybody accepts that the law should be recalibrated a little to improve matters.

David Howarth (Cambridge) (LD): I, too, welcome the Secretary of State’s announcement of an intention to review clause 26. Just to be absolutely clear about what he just said, is he saying that the case of Mullen, which is the most well known of such cases, should still be decided the way it was?

Mr. Straw: Mullen was guilty on the facts of the serious terrorism charges against him, but there had been an egregious abuse of process. Instead of being extradited from Zimbabwe, as he easily could have been, he was subject to what is now euphemistically called extraordinary rendition by the Americans, which is otherwise known as being kidnapped, through co-operation between the local security agencies and ours, bundled on a plane and brought into the jurisdiction that way. Either we have an extradition process or we do not. Although we have all had to hold our nose over that case, it was right and proper of the courts to order his release in those circumstances.

I come to an issue that was raised by my hon. Friend the Member for Rhondda (Chris Bryant)— [ Interruption ]—who is still present in spirit, if not in his place. The Government have a strong record of promoting equality and of tackling discrimination and bigotry in all its guises. We have strengthened the sentencing framework, so that sentences can be increased where race, religion, disability or sexual orientation are aggravating factors. We have also introduced legislation to outlaw the stirring up of religious hatred, as my hon. Friend reminded the House. We have received many representations on the matter, and I am pleased to say that we will propose a further step to strengthen the protection afforded to homosexual people. It is a measure of how far we have come as a society in the last 10 years that we are all now appalled by hatred and invective directed against gay people, and it is now time for the law to recognise the feeling of the public. In Committee, we will table an amendment to extend the offence of incitement to racial hatred to cover hatred against persons on the basis of their sexuality. Homophobic abuse, lyrics and literature are every bit as abhorrent to those concerned as material inciting hatred based on race or religion, and have no place in our communities.

Mr. John Redwood (Wokingham) (Con): Like the Secretary of State, I have no time for abuse of any kind, or for violence of the sort that he wishes to outlaw. However, in my constituency I am receiving a number of representations from the Christian community, as, I am sure, are other Members. Will the right hon. Gentleman reassure the House that he will take full account of the wish to preserve freedom of speech for those expressing Christian views?

Mr. Straw: Yes. I too have received such representations. As with the provisions on incitement to religious hatred, we must be extremely careful to ensure that the law strikes a proper balance. I promise the right hon. Gentleman that my right hon. Friend the
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Minister of State, other Ministers and I are seeking to ensure that the drafting achieves that, and I hope it will then be examined very carefully in this House and in the other place to ensure that such a balance exists.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): I join the Secretary of State in calling for the creation of such an offence—that is the manifesto position of my party—but as one who was involved in the wording of the religious hatred provisions that now exist, may I commend to him the wording on which the House settled in that context? I believe that, on the whole, it strikes the right balance between freedom of speech, ensuring that the offence must be intentional, and covering threatening language only.

Mr. Straw: The hon. Gentleman has given wise counsel. The starting point for the drafting of this measure is certainly the parallel example of the current provisions in respect of religious hatred.

Andrew Mackinlay (Thurrock) (Lab): I welcome the Lord Chancellor’s announcement. Can he assure us that the provision will cover Northern Ireland?

Mr. Straw: It already does. I am very pleased to be in close association with my hon. Friend on this occasion, and to be able to give him complete and utter satisfaction.

The Minister of State, Ministry of Justice (Mr. David Hanson): I took the measure through the House.

Mr. Straw: My right hon. Friend the Minister took it through the House himself.

Of course concerns were expressed in Northern Ireland—one or two. The religious communities there are quite strong. However, I think that everyone is now reasonably relaxed about this important protection for a minority.

I want to hear views from the House, and from outside organisations, on whether the offence could or should be extended to cover hatred against transgender and disabled people. I cannot give commitments until I have seen the arguments—this is a complicated area—but I am ready to consider amendments to that end if a case can be made.

The whole House is agreed that we must do all that we can to provide the maximum protection for our children from predatory sex offenders. Members will recall that in June the Government announced the conclusions of a review on protecting children from sex offenders. A key action arising from that was to give responsible authorities that are within the multi-agency public protection arrangements—known by the acronym MAPPA—a positive duty to disclose information about convicted sex offenders to the public. We now propose to insert an amendment in the Bill which will do just that. We believe that there should be a presumption of disclosure to members of the public when MAPPA authorities consider that an offender presents a risk of serious harm to children.

Those who are victims of criminal acts and who seek to protect themselves or their communities should be treated with respect by the criminal justice system. There can be no justice in a system that makes the
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victim the criminal. I know that this issue has been the subject of some intense contributions in the House, including private Members’ Bills from Opposition Members. As I announced outside the House a couple of weeks ago, I want to look again at the law on self-defence to ensure that the focus is correct, and that those who act proportionately are not treated like criminals. My aim is to complete the review in time for the issue to be addressed in the Bill.

The Bill contains, in part 11, one immigration provision. The freedoms that we enjoy in this country should never be abused. The new special immigration status will ensure that foreign criminals and terrorists who cannot be deported cannot expect a settled status in this country.

Mr. Philip Hollobone (Kettering) (Con): Given that this is called the Criminal Justice and Immigration Bill, is it not disappointing that it contains no provisions to close the loophole whereby if illegal immigrants are apprehended by the police, the police are directed by the Home Office to dispatch those people so that they can proceed under their own steam to immigration centres in either Liverpool or Croydon? In Northamptonshire recently, 16 illegal immigrants were detained by the police but then released to make their own way to the immigration centres. Local people were rightly outraged, and they will be outraged that the Bill contains no provisions to correct the position.

Mr. Straw: I understand the concern that the hon. Gentleman has raised, but the issue is better addressed in the UK Borders Bill, which relates to the powers of the immigration authorities and which is currently before Parliament. I hope that the hon. Gentleman will find an opportunity to debate the issue, and to ensure that he is given a proper answer. I will take up what he said with my right hon. Friend the Home Secretary.

Lynne Jones (Birmingham, Selly Oak) (Lab): I am concerned that my right hon. Friend has not mentioned proposals to amend the Street Offences Act 1959. I want to record my disappointment that there has been no opportunity for a comprehensive review of the laws on prostitution. What happened to the proposal in the 2006 White Paper to amend the definition of a brothel to allow two or three individuals to work together?

Mr. Straw: I do not know the precise answer to that question. I shall allow my right hon. Friend the Minister to deal with it when he winds up the debate.

Several hon. Members rose

Mr. Straw: I want to end my speech now.

I think that the provisions in the Bill are sensible. We are always open to suggestions on measures such as this, and although there may not have been the comprehensive review for which my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) has called, there has certainly been a significant and substantial review of the law in this area. I think that even what are seen as relatively minor changes ending the way in which prostitutes are described as “common prostitutes” rather than as persons, in an attempt to
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dehumanise people who deserve our sympathy as much as our condemnation—if not more—represent a sensible way of proceeding. However, if suggestions are made that we can accommodate in the Bill, we shall seek to do so.

I have not been able to deal with the whole Bill, because I was very conscious that we had begun two hours later than is normal and that other Members would wish to speak in this foreshortened debate, but I hope very much that the Bill is given an unopposed Second Reading. If that happens, it will at least mean that Opposition Members have gradually learnt something as they enter their 11th year of opposition. The range of issues on which they have opposed measures for the sake of it has been extraordinary, and removes from them any possibility of not just claiming to talk tough—which they do all the time—but claiming that they will act tough when it comes to criminal and antisocial behaviour.

Meanwhile, there is always room for people to be converted and to see the light. I look forward to hearing, in a second, the hon. Member for Arundel and South Downs applaud the fact that whereas crime doubled under the last Administration, under this Administration—with 20,000 extra prison places and increased investment in the police—crime has been cut, whichever way we look at it.

6.19 pm

Nick Herbert (Arundel and South Downs) (Con): I congratulate the Lord Chancellor on introducing his first criminal justice Bill in his new role. He has a hard act to follow—in fact, he has at least 35 Acts to follow. That is how many pieces of legislation on criminal justice and immigration we have had already from the Government.

How much this Bill will add to that we will come to debate, but at least we know what it will subtract. Part 1 will scrap the plethora of orders introduced by the Powers of Criminal Courts (Sentencing) Act 2000, including the action plan order, the attendance centre order, the curfew order, the exclusion order, the supervision order and the youth community order—the Government’s own provisions and they lasted seven years.

Clause 10 will repeal section 189 of the Criminal Justice Act 2003 and remove the right of magistrates to suspend jail sentences. That provision lasted just four years. However, this Bill goes further than repealing the Government’s recent laws. It repeals Bills that have not even been passed. Schedule 23 will repeal schedule 21 of the Legal Services Bill, which has not even been passed yet and which we will consider next Monday. The Lord Chancellor already wants to repeal it—he has told us today that he is already reviewing clause 26 in relation to criminal appeals in this Bill.

What a farce. Not only does the Bill repeal the Government’s own legislation but it repeals parts of Acts that have not yet been fully implemented. Rather than curtailing magistrates sentencing powers in clause 10 of this Bill, perhaps the Lord Chancellor could implement section 154 of the Criminal Justice Act and give magistrates the power to sentence offenders to a year in jail. That was what Labour promised. They legislated for it and under the last Home Secretary they broke that promise.


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Mr. Straw: The hon. Gentleman is making a rather forced point about clause 26. Can he explain what his point is? We put out a consultation paper. There was consultation on it. The particular drafting of the clause did not find favour. Is he therefore condemning us for listening to the consultation? If not, what is his point?

Nick Herbert: The point is quite straightforward: it is a good idea to do the consultation before one legislates. That is the purpose of it. It is certainly the case that the majority of respondents to the Government's consultation paper opposed that provision. In fact, the Government said that a majority of the legal correspondents, as they are called, opposed it. Let us have a look at how many other respondents there were. The legal correspondents included a number of important bodies, including members of the judiciary, the Criminal Appeal Lawyers Association and the Criminal Bar Association; I could go on. The members of the public, and we do not know what their views were, included someone called Trev. The majority of the respondents, as the Government have said themselves, have rejected the provision. The question is why the Government have introduced a criminal justice Bill before the end of the Session, which they intend to carry over—they originally intended to debate it in June—when they have not consulted properly on the measures in it. That was the point that I was seeking to make.

Stephen Hesford (Wirral, West) (Lab): Did the hon. Gentleman take part in the consultation exercise on quashing convictions—yes or no?

Nick Herbert: We did not take part in the consultation exercise. I do not think that, with the number of eminent legal authorities that responded, it was necessary for us to do so. There has been an overwhelming rejection of the proposals in the consultation paper.

This is a typical Christmas tree Bill where the Government are certain that they wish to legislate about something but are not sure what. We see the same with the Government’s proposals in relation to the Flanagan report. The Lord Chancellor said nothing about that. Originally, the Prime Minister said that this Bill was to provide the vehicle for measures relating to police efficiency that would arise as a result of the Flanagan report. Why did not the Lord Chancellor tell us what those measures will be?

Mr. Straw rose—

Nick Herbert: Perhaps he can tell us now.

Mr. Straw: I will tell the hon. Gentleman why I did not talk about that. I thought that Madam Deputy Speaker might rule me out of order if I started to talk about things that were not in the Bill, rather than about things that were in it.


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