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Lord Mayhew of Twysden: It is not entirely in the interests of solidarity with the lawyers' trade union that I rise to support the words of the Attorney-General. The amendment touches on an extremely important and very sophisticated area of relationships. In England and Wales the Attorney-General superintends, by statute, the Director of Public Prosecutions, who in turn heads a very large department which is now principally called the Crown Prosecution Service. He has no powers to give directions.

As we have been reminded, since the assumption of direct rule the Attorney-General here has also been the Attorney-General for Northern Ireland. He superintends the director and has the power to give him directions, although in modern times none has ever been given, if any has ever been given. The Bill proposes that the Director of Public Prosecutions shall be independent. I believe that to be right.

Given the highly charged atmosphere of Northern Ireland—to use a well-chosen word that appears in the review—it is important that this enormously invasive prosecution arm of the state should be exercised in Northern Ireland by an official who is entirely independent. That is a departure from the current system in England and Wales and in Northern Ireland.

Running a prosecution service will be a very substantial task. The director currently has about 40 lawyers in his department, but I understand that he

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will probably need about 140 or 150 to take over all the prosecutions that are currently run by the police. It would be nearly impossible for the Attorney-General for Northern Ireland to combine the function of running that, as the amendment proposes, with his other extremely important functions. The Attorney-General is the guardian of the public interest in Northern Ireland and I trust that he will remain so. As in England, it is high among his responsibilities to make sure that the Government stay within the law. In modern times, there have been a number of instances in which the Attorney-General has been obliged to insist upon this. That is incompatible with being the executive head of a substantial prosecuting service.

While respecting any attempts to reduce the number of people on the public payroll, I respectfully suggest that this proposal is practically impossible to operate and would strike seriously at the important and delicate role that the Attorney-General in our system of government exercises.

Lord Brooke of Sutton Mandeville: I am not a lawyer. I shall not say that again during the course of this Grand Committee.

Lord Mayhew of Twysden: And do not say, "Thank God" either.

Lord Brooke of Sutton Mandeville: My noble and learned friend knows that on the previous occasion when I said that in the Chamber, I did not say "Thank God". However, everything I say at any stage in the Grand Committee must come with that health warning. I do not have the advantage of my noble and learned friend, not only in terms of the offices he has held, but also in terms of his legal practice. However, the delicate operation that has to be set up in Northern Ireland is a sophisticated construction. Speaking as a bystander and from some distance, I admire it for that delicacy and I hope that the Liberal Democrats will not feel it necessary to press this point, because the balance that has been achieved is a very good one.

Lord Goldsmith: Before the noble Lord, Lord Smith, replies, I would like to make one very small observation, which has no effect on the amendment. The noble and learned Lord, Lord Mayhew, commented on the power of the Attorney-General in England and Wales to direct the Director of Public Prosecutors here. I ought to put on record that I do not entirely agree with his assessment of that. I have in mind statements made in another place by Sir Michael Havers—when I think that the noble and learned Lord might have been Solicitor-General—and the subsequent statements of the position in another place and also in the Glidewell review. That does not affect the very powerful points that he made, but it is right that I note that point of disagreement, lest in some other debate about England and Wales, it became relevant to consider it.

Lord Smith of Clifton: It was with some trepidation that I listened to three QCs. I knew I was not going to win to their satisfaction.

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This humble juror does not find the case entirely proven, because, as my noble friend Lord Shutt of Greetland reminded me, the Belfast agreement was to create a fresh start. That means that we might have had a bit of lateral thinking, not the same old panoply that England and Wales are left with. Of course, we do not expect lawyers ever to have lateral thinking when it comes to their own emoluments. They should declare interests. I may well press this on Report, but at the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 124 and 125 not moved.]

6.30 p.m.

Lord Williams of Mostyn moved Amendment No. 126:

    Page 17, line 37, at end insert—

"( ) The Service is to be funded by the Secretary of State."

The noble and learned Lord said: This is a technical amendment. It makes it clear on the face of the Bill that the Secretary of State for Northern Ireland will be responsible for the funding of the prosecution service prior to devolution of justice functions. At the time of devolution, this provision will be amended to put the responsibility for funding on to the devolved administration.

Concerns were expressed in the House of Commons that the Bill was not clear enough. This amendment is to provide that clarity. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 127 to 131 not moved.]

Clause 29, as amended, agreed to.

Clause 30 agreed to.

Clause 31 [Conduct of prosecutions]:

[Amendments Nos. 133 to 138 not moved.]

Lord Williams of Mostyn moved Amendment No. 139:

    Page 19, line 37, at end insert "or section 57 of the Civil Aviation Act 1982 (c. 16)"

The noble and learned Lord said: The amendment expands the existing definition of police force to include special constables appointed under Section 57 of the Civil Aviation Act 1982. The Director of Public Prosecutions will be required to take over proceedings instituted by the police forces defined in this clause. I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Discontinuance of proceedings before court appearance]:

[Amendments Nos. 140 and 141 not moved.]

Lord Glentoran moved Amendment No. 142:

    Page 20, line 3, at end insert "and

( ) the victim or victims of the offence or, in the event of their being deceased or mentally incapacitated, their next of kin"

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The noble Lord said: This group of amendments concerns victim's rights and information flow associated with that during a possible prosecution process. This is a very important amendment because it goes to the heart of victims' rights and the information that they may receive during the prosecution process.

The first amendment is designed to place a duty on the Director of Public Prosecutions when he decides to discontinue a prosecution to inform not only the person being prosecuted in the court, or by the court, but also the victim.

I accept that Amendment No. 143 may be a little more sensitive. It would qualify that by stipulating that the director must judge whether supplying the victim with the reasons for the discontinuance of the prosecution is against the interests of justice and the public interests generally.

The new clauses in Amendment Nos. 239 and 240 give these issues the prominence that we feel is entirely appropriate.

These amendments attempt to adhere to recommendation 49 in the review. For once it is our side that is coming in for the attack using the review. Paragraph 4.167 of the review states,

    "where information is sought by someone with a proper and legitimate interest in a case on why there was no prosecution, or on why a prosecution has been abandoned, the prosecutor should seek to give as full an explanation as is possible without prejudicing the interests of justice or the public interest".

I beg to move.

Lord Mayhew of Twysden: I want to comment briefly on Amendment No. 143. The reference by my noble friend Lord Glentoran to recommendation 49 was helpful. I do not read that as recommending that there shall be legislation in the form in which we have it.

One has to be very careful in imposing an obligation, even in general terms, to give reasons why a prosecution has been discontinued. There is a very practical and serious risk that damage will be done to the reputation of other people which they will not have any means of redressing. It is very difficult to explain why, in respecting the importance of not doing that, a prosecution has been discontinued. It may be because there are many practical impediments and one can then leave the impression very strongly in the public mind that whoever one was going to prosecute is as guilty as sin, and he or she would have no means of securing redress from that. That is the danger here and it may be better that that should be done through some administrative direction rather than by legislative requirement.

Lord Goldsmith: The interests of victims are enormously important in the criminal justice system. That is something that the Government entirely accept. In Clause 67, there is already an important series of provisions relating to the giving of information on the release of offenders. There has been a substantial increase in funding for victim support in Northern Ireland to help with the funding

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of victims' groups because, again, the interests of victims are extremely important. It is no different in England and Wales where there is a much greater concern to ensure that victims are protected properly throughout the criminal justice system.

I do not in any way dissent from the underlying point that the interests of victims must be properly taken into account. However, both amendments that were spoken to by the noble Lord, Lord Glentoran, are inappropriate for legislation and certainly for legislation in this form. Let me take the first of those proposals, which involves the provision of information to victims on the progress of their case, if I can put it that way. It is not quite technically their case, but it is very easy to understand why it is so regarded. It is absolutely right that in the past we all too often forgot the interest of the victim and treated the victim simply as a witness to a crime and not someone who was fundamentally and in a very direct and personal sense involved in what should take place.

The review group was conscious of that and made a number of recommendations with that in mind. However, to deal with that matter in legislation is not the right way to approach it. It is a complex matter. The review group was clear, as has been said—recommendation 238, to which reference has been made, states that the provision of information to victims about the progress of a case should be,

    "a matter for the professional judgement of the prosecutor".

That is important. In a moment I will come to the question of the giving of reasons.

The clause would give the prosecutor no room in which to exercise that judgment if it was amended in the way in which the noble Lord seeks. It does not include, for example, the safeguards that Clause 67 includes when giving information about the release of an offender, to have regard to the potential issues relating to the safety of the victim or any other person. I can, however, tell the noble Lord this, and hope he will be comforted by it: that work is being taken forward by the prosecution service's implementation team, in consultation with the police—that is obviously important—in order to determine the precise point at which responsibility for liaising with victims will pass from the police to the prosecutor. As part of that work, they are considering the circumstances in which consultation with victims will be held, what can properly be discussed with victims and what information can be provided. I can further tell the noble Lord that when that work is completed, the details will be set out in the prosecution service's code of practice. I have been very involved in the work that has been done in England and Wales on implementing precisely that approach. I hope that the noble Lord will be comforted by that.

I turn to the question of the duty proposed to give reasons. It is, as the noble and learned Lord, Lord Mayhew, said, with his very great experience, a very difficult and complex matter. The Government policy in this area has been set out in some detail in the criminal justice review. One has to balance the interests of the victim against other interests, such as those of

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witnesses and the potential damage to the reputation or some other injustice to an individual. The noble and learned Lord gave one extremely good example of that: there may be a purely technical reason for not prosecuting. That may be the reason why the prosecutor cannot continue. To say, however, that that is the reason why the prosecution is not continuing carries with it a very clear message: that in the belief of the prosecutor the suspect is guilty. Members of the Committee will see that the accused can effectively be convicted in the public eye without ever having had a trial to clear his name. It would be very easy to interpret that as if the accused were actually guilty.

I will offer another example: the reason why the prosecutor may not wish to continue, or believe it not to be right to continue, is because of a concern as to the credibility of a key witness—perhaps the complainant or the victim. The reason why the prosecutor may believe that the testimony will not stand up in court might be very personal to that person; it may be a very proper decision to take—that does happen. However, to put the prosecutor—the director—under a statutory duty to disclose the reasons, which could result in disclosing that very personal reason why the credibility of that key witness is not sustainable, could give rise to serious injustice to that individual.

The end result—it is the present position in Northern Ireland—is that the director recognises that the propriety of applying a general practice of balancing very carefully what are the reasons in favour and the reasons against giving reasons in more than general terms. The director currently accepts—I have discussed this matter with him on a number of occasions—that he has to consider the applicability of considerations that militate against providing detailed reasons, together with any other considerations which seem to him material to the particular facts and circumstances of the case in question. Where a proper balance can be struck, the director will endeavour to give reasons for non-prosecution. That position is not dissimilar—it is broadly similar—though not identical, to that in England and Wales and in the Republic of Ireland. I have no doubt that it will continue to evolve in accordance with review, legal advice and developments in the law. On 1st March, I provided in answer to a Parliamentary Question a statement about the policy of giving reasons in particular categories of case.

The position is complex. I entirely agree that it is legitimate and important to consider the interests of victims, but it would be, as the noble Lord, Lord Glentoran, generously accepted, a sensitive area in which to impose a statutory duty. It might give rise to more cases of judicial review of whether there was, in the particular circumstances, a duty to give reasons.

I hope that the noble Lord will see in those answers a response that is sympathetic to the underlying concern but which puts forward a good and important justification for not putting such complex, sensitive and difficult matters into the form of a rather bald statutory duty.

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6.45 p.m.

Baroness Park of Monmouth: I do not, in any way, dispute what the noble and learned Lord said, but, for information, I ask him what the position would be if the reason for discontinuing the prosecution was that the public prosecutor and the police knew that threats had been made that made it impossible to take the matter further. Is there any provision for that to be noted and recorded, if it does not put the life of the victim at risk?

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