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Lord Hutchinson of Lullington: I have given notice of my intention to oppose the clause. I should like to support all that the noble and learned Lord, Lord Ackner, has said. I remind the noble and learned Lord the Lord Chancellor that at Second Reading he said that he had not come upon any rational argument that could be advanced against salaried prosecutors. I do not know whether he takes the view that the Benson Report, the other Royal Commission, and the whole of the noble and learned Lord's speech today are all irrational. It is true that throughout the debate on this matter the noble and learned Lord has not dealt with the arguments put forward at length in the reports of the two Royal Commissions and, indeed, in other places.
The amendments to the clause dealing with salaried prosecutors, which were tabled by the noble Lord, Lord Thomas, were dealt with after midnight yesterday. That was thought proper by the Government despite the knowledge that the issue of the rights of audience of salaried prosecutors was highly controversial and the opposite side of the coin to the issue of salaried defenders which took up two hours of the time of the Committee and attracted no fewer than 15 speakers.
The noble and learned Lord, Lord Simon of Glaisdale, has inveighed repeatedly against this ploy of taking controversial clauses in a Bill at a time when it is known perfectly well to the Government that almost no noble Lords will be present--in fact, there were only three or four. I regret to say that that ploy will not save any time at all. The arguments which could not be put on that occasion by me, because I could not possibly have been here, will be put now.
One of the remarks which the noble and learned Lord made to an almost empty Chamber in the early hours of the morning, echoing what the noble and learned Lord, Lord Ackner, has just said, was that these amendments can be recognised as a set of special pleadings by the Bar. That, I suggest, is simply to lower the level of debate and to mislead Members of the Committee who have the advantage of not being lawyers. At my age, and 15 years after retirement, I do not come to this House to
I deprecate the constant disparagement coming from the Government Front Bench and, indeed, the proximate Back Bench, of the criminal advocate and the constant harping on about restrictive practices and money. There is a pejorative use of the words "restrictive practices" which we all understand. Many restrictive practices are absolutely essential in any profession to ensure suitable and appropriate expertise.
The clause is wrong as a matter of principle; one which, as we have heard from the noble and learned Lord, Lord Ackner, has been debated and considered over many years. The Lord Chancellor knows perfectly well that the overwhelming majority of all those who are involved in the actual practice and study of the criminal law--that is, barristers, solicitors and academics--are against the aims of the clause and are deeply concerned about its implications. The Bar has not objected to the clause giving rights of audience to solicitors. We are all involved in this matter together: all lawyers and advocates on the criminal side. What we are considering is the question of the independence and the whole-time commitment of the prosecuting advocate, whoever he or she may be. It is simply ridiculous to describe this debate as a trade union debate in relation to the Bar.
Today, in the higher courts with judge and jury, where the citizen is in jeopardy of losing his liberty and reputation for a very long period of time, prosecutions are placed in the hands of responsible, whole-time advocates who are wholly independent of state, police and government departments. The advocates are the mirror image of the judges who try the cases and who must depend on the advocate to make it possible for them to carry out their duties. These advocates seek, with varying degrees of success, to display the same essential qualities which are to be found on the Bench; namely, independence and integrity. As we have recently seen, for a judge independence means having no special interest which might appear to dilute his independence or his impartiality.
Exactly the same principle applies to the prosecutor in the higher courts. He must act throughout as a minister of justice, presenting the facts fairly and without passion before the jury. His only motive must be the interests of justice; he is not parti pris and he must be detached. That is the tradition in England and Wales in the criminal courts. If I may say so, it is that which keeps the criminal process uncorrupt and fair. This may be denigrated by the noble Lord, Lord Bach, with his tales of tittle-tattle in his robing room in Leicestershire--wholly unrecognisable to such a dinosaur as myself. However, whatever may be rightly said about delays and imperfections in the criminal process, a criminal trial in this country remains the most uncorrupt and the most fair in the civilised world and is recognised as such.
Prosecutors here are perceived by defendants and the public for what they are and for what they are not. They are not civil servants and they are not subject to the pressure of preferment. They do not have conflicts of interest between duty to employer and duty to the court. They have no direct access, and they are available to appear for the defence. That is the situation today. They do not claim, as the noble Lord, Lord Bach, (who, we all appreciate, is part of the Lord Chancellor's team) seems to think, some spiritual calling or some mystical relationship with each other. Similarly, they do not consider themselves, as the noble Lord seems to think--although, for all I know, this may apply in Leicester--superior to teachers or doctors. On the contrary, teachers and doctors are the colleagues of prosecuting and defending barristers and solicitors in the criminal court. They, too, have a vocational approach to their work; namely, that there is more in the work than just money.
Of course the independent prosecutor must act on instructions and must consult before making crucial decisions; but, finally, the decision and responsibility is his and his alone. Even if he is Treasury counsel, his place of work--all "Treasury counsel" means is that he in fact holds himself open to give the Director of Public Prosecutions priority in his work--is in a group of other sole practitioners at arm's length from the police, from the witnesses, from politicians, from civil servants and from all those who may apply pressure or seek to influence. He must be available at all times to those who require his services.
Once that advocate is employed and salaried, working daily and solely in a department with its own culture and preparing cases from start to finish in the closest proximity and co-operation with the police (and their culture), or with government departments, local authorities, or indeed in corporations, carrying out their instructions, he cannot possibly be anything other than partisan. When the question of a code was suggested in our earlier discussions with the noble and learned Lord, it very quickly became a matter of our getting into "deep waters"--that is, deep waters because of everything that I have just said. There is no possibility of having a code which can cover those two forms of advocacy in conducting prosecutions. Every criminal advocate knows that in-house lawyers--that is lawyers from the DTI, from the Inland Revenue and from Customs & Excise--are clearly and fiercely partisan. Indeed, it is the whole of one's experience. Of course that is so; they are there in order to further the perceived interests of their own departments.
With the greatest respect, it seems to me that the noble and learned Lord the Lord Chancellor will simply not face up to these points. If I may say so, some of his justifications in his midnight argument for the salaried prosecutor almost descended into farce. The noble and learned Lord, Lord Donaldson, has already dealt with the first argument that judges are paid by the state and they are independent; therefore, why are prosecutors in the office of the DPP not equally independent? The noble and learned Lord shot down that argument.
The noble and learned Lord's second argument was that salaried lawyers prosecute in the magistrates' court, so why on earth should they not do so before judge and jury? Members of the Committee will appreciate that police officers conducted their own cases in the magistrates' courts only a short time ago. No one that I know of has suggested that they should conduct cases in the Central Criminal Court.
The noble and learned Lord's final argument really proves the point that I am seeking to make. He said how bizarre it was to suggest that Dame Barbara Mills should forfeit her right to appear in the higher courts on her appointment as Director of Public Prosecutions. There it is. It is the job; it is not the personality that we are talking about. Will it really be suggested by the noble and learned Lord that Dame Barbara Mills is eminently suited to go down to the Central Criminal Court and conduct her own murder cases in front of the High Court judge? Further, will it be suggested that, when he was Home Secretary, Mr. Kenneth Clark, QC should have gone down to the Old Bailey and conducted official secrets cases? Is it the suggestion that once you are a barrister you are a barrister and you should have full rights of audience? I suggest that it is not the personality and the qualifications; it is the job that you are doing which makes it wholly inappropriate.
Finally, I should like to return to a particular point because it illustrates what I am saying to the hilt. I ask the noble and learned Lord to read the Scott Report if he has not already done so. The Scott Report is a monument to the crucial role of the independent prosecutor. The Matrix Churchill case in a nutshell concerned the suggestion by the Government that this company and its managing director, Mr Henderson, were deceiving the Government by putting forward licences which were in themselves deceitful in sending military goods to Iraq. The Attorney-General instructed Ministers that they were to sign certificates to say that the internal documents in each department could not be disclosed to the defence because that would be against the interests of the state and, as regards MI6, would put innocent persons' lives at risk. The gentleman's defence was that Ministers knew perfectly well what was implied in the licences, that they tipped the wink as regards the form of the licences, and that far from being deceitful he was going to Iraq and giving information to MI6 which was of the greatest possible value to the Government.
The prosecuting counsel was instructed to urge the judge to maintain that ban on those internal documents which would prove the innocence of this man and his company. His instructions were to urge the judge to do that. One of the Ministers, the only Minister who was not a member of the Bar--the other three all were, and two of them were Queen's Counsel--objected to signing the document because he could see perfectly plainly that the documents would be of use to the defence. He requested that that objection should be conveyed to the judge. What did Scott find? First, he found that there was no justification for those certificates. Secondly, he found that the judge had never been told--because prosecuting counsel had never been told--of the Minister's objection to signing the certificate. Thirdly,
Could there be any more condemnatory example of what happens when lawyers act for the Government, and when even trained barristers are in political positions? Luckily, counsel for the Crown, Mr Moses, behaved as one hopes independent counsel would do. When he saw that there was a possible miscarriage of justice ahead of him, he, totally on his own initiative, decided that these documents should of course be released to the defence. On his own initiative he asked the judge to go back on his ruling that the intelligence documents should not be allowed to be revealed, and after consultation with the Attorney-General, and having told him of his views, brought the whole prosecution to an end.
I have taken up time in referring to that case. It was only because there was an independent prosecutor, independent of the departments concerned and independent of the Government, and a defence barrister who was prepared to maintain the pressure on the prosecution, that there was not a fundamental miscarriage of justice. Anyone who has read the Scott Report will see that if the four lawyers in that case had been government employed lawyers, there would have been no possibility whatever of that company and that managing director being acquitted. Indeed in a case that preceded that one concerning much the same situation, the barristers were not sufficiently independent. They gave the advice that the defendant should plead guilty. Some form of plea bargaining was arrived at and it was only after the Scott Report that that case was returned to the Court of Appeal, the plea was set aside and a miscarriage of justice which had taken place was set right.
That is all I say in support of the noble and learned Lord, Lord Ackner. A state prosecutor and a state defender are both made possible under this Bill, supervised by members of the executive, the Attorney-General and the Lord Chancellor. That surely raises a somewhat menacing matter of principle worthy of further consideration and worthy of consideration by the Committee.
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