Q
287Mr.
Boswell: Witnesses will no doubt be relieved, or not, to
know that I am a layperson and will therefore allow myself to be a
little more flat-footed than some of these legally qualified
commentators. I
wish to return to the question on provocation, that a defence should be
that D has a justifiable sense of being seriously wronged. As
constituency MPs, we all have many people coming to see us with a sense
of being seriously wronged, even if those wrongs are not homicidal in
intent. Can our witnesses explain what it would be to have a
justifiable sense of being seriously wronged? Could that be defined for
a jury, and could it be ensured that it was consistently interpreted
across the various
courts? Peter
Lodder: You are looking, are you not, at
clause 42(4)(b). That is linked to paragraph (a), which
specifies something
that “constituted
circumstances of an extremely grave
character”— so
I think that puts it into a pretty limited context in any event. In
that limited context, paragraph (b) in addition specifies something
that
“caused D to have
a justifiable sense of being seriously
wronged.” If
you go back up to clause 41(1)(c), the person against whom this
assessment is made is
“a person of
D’s sex and age, with a normal degree of tolerance and
self-restraint” and
that person, in the circumstances of D,
“might have
reacted in the same or in a similar way to
D.” It
is not dramatically different from current law—it is expressed
slightly differently—in its purpose.
Q
288Mr.
Boswell: That is genuinely helpful to me, and I am
grateful for your road map in interpreting this. Do I then interpret
what you have just said as meaning that the justifiability or otherwise
of this sense of being seriously wronged is not so much on the facts of
what the wrong, or alleged wrong, was, but rather on the circumstances
relevant to a person of the defendant’s sex and age with a
normal degree of tolerance—in other words, it is rather more a
subjective test in relation to the defendant than an objective test on
the facts of what is or it not wrong, or an act of wronging
them.
Peter
Lodder: If you start with clause 42(4), the loss of
self-control
is “attributable
to a thing or things done or
said...which— (a)
constituted circumstances of an extremely grave
character”. There
is an objectivity to that test to begin with, which is a general
objectivity. You then have to link it to (b) and follow the road map,
as you have described it, back up to see what a person of the
characteristics of the defendant might be expected to do under those
circumstances. You are actually covering quite a wide
terrain.
Q
289Mr.
Boswell: So to use my formulation there is both an
objective test about how grave this matter is and a subjective test
that the person in that context might be expected to have a justifiable
sense of wrong about what had happened. I notice that the other
witnesses are nodding at that.
Peter
Lodder:
Yes.
The
Chairman: Do you want to add anything, Mr.
Stobbs? Mark
Stobbs: No, I agree with that
entirely.
The
Chairman: We appear to have dealt with provocation and
assisted suicide. I know that Mr. Garnier wants to talk
about sentencing. Are there any questions on special measures, witness
anonymity, live links or
bail?
Q
290Mr.
Kidney: Mr. Lodder, am I right in thinking that
the Bar Council does not have any particular objections to removing the
safeguard of the consent of the accused to having live links from
police stations and
prisons? Peter
Lodder: It is not something that we have made a
particular feature of. I think the Law Society has made observations
about it and, indeed, although we did not put it in our note, I became
aware of its concerns subsequent to our note. I think it right to say
that in general terms we support what the Law Society has to say about
this. We think—I put it very simply—that there is virtue
in ensuring that a defendant sees those
who represent him as soon as possible. There are dangers, in the sense
that if someone becomes disenchanted with the justice system, and does
not have a chance to see his lawyer and gain the confidence that I am
afraid does not exist with a remote link—it is a dehumanising
process, certainly in that context—the savings that are
otherwise sought generally in the justice system may not be achieved.
But, beyond those general observations, I have nothing else to say at
the moment.
Q
291Mr.
Kidney: Thank you. Mr. Stobbs, do I understand
that the Law Society’s position is to draw a distinction between
live link appearances from prison and live link appearances from the
police
station? Mark
Stobbs: Yes, it is.
Q
292Mr.
Kidney: So does that mean that you have no objections to
removing the safeguard of consent for people who are in prison
appearing by live
link? Mark
Stobbs: Our understanding is that when you are in
prison you have had access to legal advice; you have usually had some
time to think about things and establish what your position is. The
usual course is that the hearings that happen while you are in prison
are of a relatively technical, case-management nature. They are not as
serious as your first appearance in front of a court, when you have to
decide on your plea, when there are issues of bail to be sorted out,
and when it is extremely important that you have had proper access to
legal advice, given the proximity to your arrest and arrival in the
police station. It is not clear to us that that will be achieved under
the scheme. We think that it should be delayed at least until the pilot
is over so that we can assess that
properly.
Q
293Mr.
Kidney: I have not seen an example of the pilot, but would
the duty solicitor not be shoulder to shoulder with the accused in the
police station. Would not all the advice and discussion take place
before the cameras are switched
on? Mark
Stobbs: There are issues with the availability of the
duty solicitor and with the defendant having access to the lawyer of
their choice. We would like to see how this works in the pilot before
consent is taken
away.
Q
294Mr.
Kidney: The court has to be satisfied that it is not
against the interests of justice to carry on like this. Is it possible
that the court would not ever proceed if the accused said, “I
haven’t met my lawyer
yet.”? Mark
Stobbs: I suspect that it is unlikely. There will be
an issue about the amount of time that the defendant has in which to
see their lawyer and for the lawyer to assess properly the
defendant’s capacity to take
decisions. Linda
Lee: As Mr. Lodder said, one of our
concerns is the dehumanising effect that the measure could have. It is
possible that the court will not be aware of the state of mind of the
defendant by video link. Until we are certain about how that works out,
we would be loath to withdraw
consent.
Q
295Jeremy
Wright: May I ask something about special measures for
witnesses and then something about special measures for a defendant?
The Bill provides automatic eligibility for witnesses under 18 to have
special measures for particular gun or knife crimes. Do Mr.
Lodder and Mr. Stobbs think that there is logic in a
particular section of offences being treated in this way? It severs the
link that exists between the need or wish of the witness to have
special measures and the fact that without them the evidence would be
of a lower quality. The measure says simply that if it is a particular
category of offence, there will be automatic eligibility. We all
understand the political reasons for singling out those offences. Are
there legal reasons for doing
it? Peter
Lodder: I will leave Mr. Stobbs to
start. Mark
Stobbs: We are unaware of any legal reasons for the
separation of gun crime. We think that it is a largely political point.
We understand the imperative, but are not sure why a special case for
one group of offences should be in the
Bill.
Jeremy
Wright: Mr. Lodder, can you think of
any? Peter
Lodder: No I cannot, having been given the
opportunity.
Q
296Jeremy
Wright: The other question I have is about clause 87 on
the examination of the accused through an intermediary. We all
understand how interpreters are used in criminal courts, but this is
slightly different. The difference is in proposed new section 33BA(4),
which sets out the function of an intermediary as to
communicate
“to the accused,
questions put to the accused, and ... to any person asking such
questions, the answers given by the accused in reply to
them”.
So far, so good. That
is similar to an interpreter. It goes on to
say “and
to explain such questions or answers so far as necessary to enable them
to be understood by the accused or the person in
question.” Does
that additional element cause any concern to any of
you? Peter
Lodder: If you are drawing a parallel with
interpreters, the interpreter’s oath is
to “interpret
and true explanation
make”. This
is a form of interpretation so in principle, that is not a problem.
When a court is receiving evidence through an interpreter, it is always
of the greatest importance for the tribunal to be vigilant to ensure
that there is faithful interpretation of what is being said. There are
often times when a witness gives a long answer and the interpreter
comes out with a translation that seems remarkably shorter. That is
often a trigger for a judge to remind the interpreter of the importance
of the proceedings. There is also on occasions a tendency for a
discourse to build up in the witness box. The advantage here with an
intermediary is that it will not be quite so shrouded in mystery as it
might be when there is a language which no one else in the court
speaks. If you straitjacket an intermediary by requiring them not to
give any explanation at all, you will diminish the advantage of the
intermediary’s
presence. Mark
Stobbs: The Law Society agrees with that entirely and
supports this. We think that it is a useful way of improving
defendants’ ability to participate in the proceedings
properly.
Jeremy
Wright: Thank you. That is very
helpful.
The
Chairman: Now we move to
sentencing.
Q
297Mr.
Garnier: I am looking at clause 100 and the following
clauses beginning on page 60, and particularly clause 107 and how that
is to be construed with clause 109, “Resource
implications of guidelines”. We have heard arguments on both
sides of this dilemma. There are those who point to the fact that the
Bill says:
“Every
court—(a) must, in sentencing an offender, follow any sentencing
guidelines which are relevant to the offender’s case, and (b)
must, in exercising any other function relating to the sentencing of
offenders, follow any sentencing guidelines which are relevant to the
exercise of the function, unless the court is satisfied that it would
be contrary to the interests of justice to do
so.” That
does not sit very well, they say, with these resource assessments set
out clause 109. The clear inference must be that these resource
assessments are not being written in the air. They are being written in
order to influence sentences. Do you as representatives of the Bar and
of the Law Society have a view about the constitutional propriety or
the practical good sense of these two
clauses? Peter
Lodder: As to the constitutional propriety, obviously
judges are there to follow and to act according to the law. If this is
the law then a judge is obliged to follow it. But it creates a tension
in the sense that, as a member of the judiciary, the judge is supposed
to have some discretion to assess the sentence that would be imposed as
against the circumstances of the offender and the circumstances more
generally of the offence. We have indicated in our response our unease
with the way in which there has been a reversal of the existing
situation into the position in which a judge is directed to follow the
guidelines. We feel, first, that this is an unnecessary change and,
secondly, that is undesirable because it will create a form of
straitjacket on judicial discretion which we do not think is a good
thing. Mark
Stobbs: The Law Society would agree with that. We
believe very strongly that judges should have full
discretion.
Q
298Mr.
Garnier: Do you think that it would be better perhaps,
looking at clause 107, for us to invite the Government to say that
every court must, in sentencing an offender, take account of as opposed
to follow any sentencing
guidelines? Peter
Lodder: That is the current situation. The current
phraseology is “have regard to” the
guidelines.
Q
299Mr.
Garnier: That is the preferred
outcome? Peter
Lodder: Yes. This is an age-old tension between what
the judiciary do and what the Government think is appropriate. To that
extent, it is a political decision. In my experience, and of course
there will be examples to the contrary, most judges are careful to
attend to the guidelines. Even in these clauses as currently drafted
there is still the facility for judges not to follow the guidelines.
The emphasis is much changed. If there is concern that there will be
maverick decisions, strictly speaking there still can be, but the
trouble is that the balance of decisions is shifted by
this.
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