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Lord Avebury: The noble Lord referred to the best interests of the child. Does he agree that they are best taken into consideration at the outset of the process, not after a decision to detain has been made? Does he also agree that if a child arrives late at night, as in his example, the local authority social services department would be perfectly capable of dealing with the matter, just as it would with any child who was not being looked after by a guardian or adult and who might need its care?
Lord Hylton: I accept nearly all of what the Minister said about unaccompanied children arriving at ports. Nevertheless, will he respond to my suggestion that daily reporting by parents with children is far preferable to detention? On the important constitutional point raised by the noble Baroness, Lady Williams of Crosby, about the change of name, will the Minister be kind enough to place a copy of his reply in the Library so that it is available to other Members in addition to those who took part in that debate?
Lord Bassam of Brighton: Of course a copy of that correspondence will be placed in the Library so that it is on the record and readily accessible to other noble Lords. To answer the point made by the noble Lord, Lord Avebury, we have to take the welfare and interests of the child into account at all times during the process. That has to be a primary consideration.
However, I ask the noble Lord to contemplate this point. However generous a spirit we have about asylum seekers, I am sure that the noble Lord accepts that some of them will be removed from this country at the end of the process because they are fundamentally in breach of our laws and regulations and are outwith the asylum process. They are illegal immigrants to this country. Some people caught within that process will attempt to abscond from the lawful authority. From time to time, children will be involved with those adults. Hard though those decisions may be, it is right that we have to place such people within secure accommodation and it is in the interests of the welfare of their children that they remain with them, so that at least the children are with adults whom they know and recognise—their family and their immediate kith and kin. Difficult though those decisions are, they have to be taken.
Of course the best advice will be taken from those involved in the welfare and care of children in local authorities. As I made plain at the outset, the desire of immigration officials is to ensure that early contact is made with social services so that they can be introduced to the situation, offer their best advice and make a proper and full assessment.
Lord Hylton: Will the noble Lord reply to my suggestion about reporting by parents with children who would otherwise be detained?
Lord Bassam of Brighton: If the assessment is that the family unit presents no risk of absconding, those sorts of reporting arrangements may well be put in place. I cannot predict that that will always be the case, because it may not be. Those judgments have to be made by those most immediate to the case—the case officers and those handling the difficult circumstances. It is best left to their discretion. We cannot easily prescribe it here in the comfort of a debating Chamber.
The Lord Bishop of Derby: I thank the Minister for his reply. I am encouraged that he emphasised the exceptional and short-term nature of such arrangements. I urge that that will turn out to be the case. It was said in a recent letter and in answer to a parliamentary Question that there is no statistical evidence or reason for increasing the detention of families. I hope and urge that it will remain an exceptional provision. In the light of the Minister's reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin: I beg to move that the House be now resumed for the Statement.
Moved accordingly, and, on Question, Motion agreed to.
Criminal Justice
3.46 p.m.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
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"I wish to make a Statement on the reform of the criminal justice system in England and Wales. We are today publishing a White Paper outlining an end-to-end reform of the service.
"First, however, I pay tribute to all those who have assisted in this tripartite paper. The Lord Chancellor, the Attorney-General and I wish to thank in particular Sir Robin Auld for his review of criminal courts and John Halliday for his sentencing review.
"The people of this country deserve a criminal justice service that works in the interests of justice and puts the victim first. The White Paper is designed to rebalance the criminal justice system in favour of the victim and deliver justice for all. We are sending the strongest possible message to those who commit crime that action will be effective in detecting, convicting and properly punishing the perpetrator.
"We have a tradition of justice in this country going back centuries. We have embarked on reform of the police and an overhaul of youth justice, including a dramatic drop in the time it takes to bring young offenders to justice. The street crime
- initiative has already made a difference by bringing together the police, the Crown Prosecution Service and the court administration.
"I can announce today that, following the Chancellor's Statement on Monday, we will invest over £600 million over the next three years in information technology. This will help us join up the criminal justice system.
"But root and branch reform across the board is still required. Delay, inefficiency and repeated adjournments are costing us dear. Through improved police investigation, case management and presentation, conviction of the guilty must be secured and acquittal of the innocent ensured. We seek not simply the process of justice, but the visible evidence that justice has been done. Every time someone on bail offends, or a case collapses or the wrong verdict is revealed later, we compound the harm done to victims and to society as a whole.
"We will ensure that victims and witnesses are protected. We will provide them with separate facilities from the accused. To ensure that their views are heard, we will establish a victims' commissioner, supported by a new advisory panel. Above all we will deliver faster, more effective justice.
"Our actions will be underpinned by the fundamental principle that a person is innocent until proven guilty and that the prosecution must prove its case beyond reasonable doubt.
"However, the one in eight defendants who fail to appear at court will be dealt with swiftly and summarily. We will bring in incentives for early guilty pleas, deal decisively with delays and improve the use and availability of forensic and technological expertise.
"As soon as practicable, the Crown Prosecution Service will have responsibility for determining the charge in the most serious cases, other than where the police need to make a holding charge. We will allow the police to impose conditions on bail before charge to limit the chances of offending.
"Disclosure of evidence is currently a battleground between defence and the prosecution. This leads to delay and considerable cost. We will rebalance the rules of disclosure. Both the prosecution and defence will be obliged to disclose all the material necessary.
"We will make the rules of evidence simpler and clearer. Relevant previous convictions will be admissible where the judge believes it would be helpful to the jury without prejudicing the defendant's right to a fair trial.
"In time, we will integrate the management of the courts into a single organisation.
"We will extend the sentencing power of magistrates from six months to 12 months and legislate to allow Parliament to extend this to 18 months.
"I can tell the House that the right of defendants to elect for jury trial will remain. However, in order to deliver justice in serious and complex fraud trials, we will seek Parliament's consent that such cases can be tried by a judge sitting alone. We will consult on whether a judge sitting alone should deal with trials where the danger of intimidation makes justice difficult to achieve. In addition, we will explore a similar option for complex financial or organised criminal cases. We have a real problem when in some parts of the country around three quarters of jury trials result in acquittals.
"We will produce in the months ahead a joint paper on long-term prevention for children at risk. We will legislate in the next Session to increase the powers of youth courts to hear more serious offences.
"Currently, no one can be tried more than once for the same offence. This is known as double jeopardy. We will allow for a retrial in cases where compelling new evidence such as DNA has come to light. This will cover murder and very serious offences such as rape.
"As I said last year, we must put the sense back into sentencing. For the first time, we will set out in legislation the purpose of sentencing: to protect the public, to punish the perpetrator and to prevent re-offending. We will establish a guidelines council to ensure greater consistency in sentencing and ensure Parliament has a role in considering and scrutinising draft guidelines.
"We will introduce a new suspended sentence of 'custody minus' which will provide automatic imprisonment for offenders who breach their sentence. We will reform short custodial sentences and introduce, once piloted, 'custody plus', requiring offenders to serve the whole of their sentence—partly in custody, and the remainder under strict supervision. A new intermittent custodial sentence will mean that offenders spend part of the week in custody. Reparation, drug and alcohol treatment will help address offending behaviour.
"However, in protecting the public we are placing emphasis on dealing with dangerous violent and sexual offenders. Those not sentenced to life imprisonment, but who are nevertheless a danger to society, will remain in custody until they are considered safe for release. An indeterminate sentence will ensure they will be released under strict supervision only when they are no longer assessed to be a threat to the public. This House takes seriously its duty to protect the public, and we wish to ensure that democratically elected representatives retain the right to protect those we serve. A whole life tariff should mean life.
"The proposals we have set out are far-reaching, radical and require a culture change. To achieve this, we will need the support of those working in the service and of the wider public. We will need a balanced and sensible debate which I hope will be
- led by this House today. We need to reinforce trust and confidence in the criminal justice system as we seek to deliver justice for all.
"I commend this Statement to the House".
3.53 p.m.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord for repeating the Statement. I hope that he will forgive me for not exhibiting complete mastery of the contents of the White Paper; it arrived on my desk only this morning and will require considerable study before we can return to the subject. However, I hope that, when that study is complete, the noble and learned Lord will agree to a much more extensive debate in your Lordships' House about its contents.
Crime in all its evil manifestations—violent crime, sexual crime, drug-driven crime, organised crime—is, I suppose, the greatest single domestic threat to the well-being of our society. The Opposition welcomes this White Paper, animated by—as the noble and learned Lord said—the reports of Sir Robin and Mr Halliday. I think that all political parties in your Lordships' House must recognise that the onward march of crime has outmanoeuvred even the most adroit of modern Home Secretaries.
As I understand it, the organising theme of the White Paper is to marshal all the component parts of the criminal justice system into a successful integrated force. I think that that is a wholly admirable objective. Indeed, it is only common sense. If the police do not successfully do their job of detecting crime, the courts will not have any prisoners to try. If the CPS is not properly resourced and does not do its job of bringing the right charges in relation to the right people, prosecutions will fail in the courts. If the courts are too biased towards the accused, many victims will not get justice. Equally, if they are too biased against the accused we will find ourselves living in a totalitarian society. If we do not get our sentencing policy right, we will never rehabilitate criminals.
So all these parts are crucially linked together. If one of these links in the chain fails, all the others will be mortally wounded. So the philosophy behind this White Paper has to be the right one.
I am also impressed by the "oil" that the noble and learned Lord has provided to lubricate this co-ordinated system: substantial investment in IT communications. As I understand it, the noble and learned Lord has set the target, to be achieved by 2005, of allowing every victim to follow by means of IT facilities the progress of the trial affecting his alleged wrongdoer. That must improve the relationship between victims and our criminal justice system.
I can, in the time available to me, and on the information that I have at my disposal, touch on only a few of the details of the White Paper. I should like, first, to comment on the features that I wholly endorse. First, I am delighted and relieved that the courageous proposals of Sir Robin about a middle tier of courts do
not feature in the White Paper. Secondly, I applaud the decision to increase the power of magistrates' courts to sentence for a period of up to 12 months.Thirdly—this is one of the most imaginative proposals in my view—I endorse entirely what I understand to be the intention of the noble and learned Lord: to take the existing pleas and directions hearings in criminal trials and extend them to a proper interlocutory procedure; so that, by a process of successive approximation, what is ultimately heard by the trial jury are the issues germane to the offence, and nothing more. That objective seems wholly admirable.
The most controversial points about the proposals are going to be those affecting double jeopardy, the right to opt for trial by jury and, perhaps most of all, the suggestion that a previous criminal record can be put to the jury before it considers the allegations. I shall reserve any comment on these individual matters until I see the Government's detailed proposals. I am partially reassured by what the Minister said early in his Statement; namely:
- "Through improved police investigation, case management and presentation, conviction of the guilty must be secured and acquittal of the innocent ensured".
I am sure that the noble and learned Lord needs no reminding from me of perhaps the most famous domestic policy utterance of Mr Churchill when he said that the hallmark of a civilised society is the protection it affords to the criminal accused. That should feature prominently on the desk of every official who is responsible for making any proposals in relation to questions of double jeopardy and the other matters to which I referred a minute ago.
We must also be cautious, when we look at rates of acquittal, not just to look at the trial procedure but also to look at the resources available to, and indeed the competence of, the CPS responsible for the particular area where the acquittal statistics are garnered. It is true that there are big differences throughout the country; but that may well reflect big differences in the standards met by the CPS. Here is an area where I think that the noble and learned Lord ought to proceed with great caution. But I take his general point that, in so far as our trial procedures now appear to be biased too much against the victim, he has to take the issue of criminal court proceedings very seriously.
I have just three other matters to mention before I subside. The first of these is about victims and magistrates' courts. If the noble and learned Lord is really serious about victim-driven reforms, he must stop closing down magistrates' courts—because there is nothing more detrimental to a victim than to have to travel long distances for his trial to be heard. That is equally true of witnesses. Given the large number of occasions on which the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Falconer, have extolled local justice locally delivered, I simply cannot understand why this programme of closures of magistrates' courts is
continuing. It may well be that the volume of cases in some of them is lower than whatever statistical test the Home Office applies; but in my submission that is a small price to pay for what we are seeking to achieve on behalf of the victim.The second point concerns the Probation Service. I applaud the noble and learned Lord's imaginative approach to community penalties. That is one of the most successful features of the White Paper. But that policy will not succeed unless really substantial investment is made in the Probation Service. That is an absolutely crucial component and corollary of successful community penalties.
Finally, I should like to say something about the proposed committee for criminal procedure. I am second to none in my admiration for the Home Office. It has a long tradition of integrity and the quality of its staff is extremely high. If I have one criticism, it is that the Home Office is perhaps a touch too excessively possessive about its powers. It took all the skilful diplomacy of the noble and learned Lord the Lord Chancellor to expropriate just a small portion of these about a year ago. I should like to suggest to the noble and learned Lord that the journey upon which he is about to embark would be vastly more comfortable and immensely more successful if he gave the criminal law procedure committee that he is about to set up its head and allowed the judges to play a full part in designing these reforms which are so urgently needed for our country.
4.4 p.m.
Lord Thomas of Gresford: My Lords, I, too, thank the Minister for repeating the Statement. I declare an interest as a practising barrister who both prosecutes and defends, a recorder of the Crown Court for 28 years and the son of a policeman. That covers a fair field.
I congratulate the Government as much on what the Statement does not say as on what it does. We welcome the abandonment of many of the proposals contained in the Auld report to restrict jury trial. Jury trial puts the citizen at the heart of the decision-making process. The jury represents the public interest in a democratic sense and is a vital safeguard against oppressive laws and oppressive prosecutions. Hence, we welcome the abandonment of the misconceived idea of appeals by the prosecution against so-called "perverse" verdicts.
We also welcome the proposals to prevent avoidance of jury service. It is wrong in a multicultural society that juries in long trials should not be representative in age, employment, gender and ethnic and religious background. Does the Minister envisage the re-introduction of the right of challenge on the basis that the jury called is not representative? Such matters are in the pipeline at the moment.
As regards fraud trials by judge alone, we shall examine the proposals with care. Experience shows that the simple issue in all fraud trials is whether dishonesty is proved. The standards of honesty should be set by the ordinary citizens on a jury. We are pleased that the Government have rejected the Auld proposal
that experts or assessors should be called in to judge the defendant in accordance with the current practices and mores of the City or the commercial world. However, it is up to the prosecution to present a case in such a way that it is clear and can be understood by the jury. It is wrong in principle for a defendant to be convicted by a judge sitting alone and be sent to prison for criminal conduct that only an eÿlite and not the general public can understand.The proposals to end committal for sentence in the magistrates' court will do much to reduce Crown Court work: a positive encouragement will exist to elect for trial by magistrates. The extension of the sentencing powers of magistrates contained in the White Paper is therefore acceptable. However, it is important that magistrates should be encouraged to regard imprisonment as the last resort. The rhetoric of successive Home Secretaries has led to an unhealthy culture in which imprisonment is seen as the first resort. Fortunately, now both the Government and Her Majesty's Opposition seem to be moving to more liberal and more sensible policies of rehabilitation and reform. We welcome the restoration of the suspended sentence where prison would otherwise be imposed.
We support proposals for early guilty pleas and plea bargaining. Open plea bargaining is far better than the nudge and the wink. If there were not at the moment discussions between prosecution and defence as to what the issues are in a trial and how they can best be resolved, the whole system would break down now. That is why so many cases that reach the Crown Court crack on the day. The involvement of the judge is not usually necessary now that sentencing guidelines have been introduced and there is a recognised percentage reduction for a guilty plea. I am pleased to see that in the White Paper those practices are commended. In the old days it was the most vital function of the judge's clerk at assizes—totally unknown to the general public—to convey what his Lordship had in mind by way of sentence. Now, open plea bargaining is the way ahead. I hope that the Minister will confirm that discussions on a plea in a closed court should be entirely without prejudice to the defence at a subsequent trial if no accommodation is reached.
There is a greater emphasis on victims. Victims and witnesses frequently require protection and support. We welcome the proposals but there must be a balance. The public must remember that witnesses are frequently mistaken and sometimes lie. It is necessary to challenge them robustly if the truth is to be established. There is no point asking a witness, "Do you mind if I suggest to you that you are telling a lie"? if the witness replies, "No, I am not" and the interrogator then says, "Thank you very much. I apologise for asking the question". Obviously, defence counsel must do their job. ACPO and other police associations that make wild allegations about devious defence lawyers and their tricks are living in a world of fantasy. That is not surprising as one never sees a senior officer in court unless the High Sheriff is throwing lunch.
The section of the White Paper on pre-trial openness and transparency is balanced. There have been spectacular miscarriages of justice due to the withholding by the police and prosecution of relevant material; hence, the defence has had to adopt the practice of demanding to see everything that it can. It has been necessary for the court to take over control in relation to the decision about whether material should be held on public interest immunity grounds. Scientific evidence has in the past regrettably been faked. Accordingly, it has been necessary for the defence to make its own inquiries in that regard.
The White Paper calls for more detailed defence statements. That may be desirable but it should not be assumed that defendants always tell their lawyers the complete truth at the beginning. They sometimes have a perfectly good and truthful defence but finding out what that is is like extracting teeth. I should be extremely wary of drawing adverse inferences impinging on a privileged area involving the instructions that have been given by a defendant to his legal team at an early stage.
There are many other points in relation to the White Paper which will require detailed attention. We approve of and welcome many points about the White Paper but others will be subject to scrutiny and criticism in due course.
4.11 p.m.
Lord Falconer of Thoroton: My Lords, I thank both noble Lords for the welcome that they have given the White Paper. I also say on behalf of my noble and learned friend Lord Goldsmith that he regrets not being here today. He is unavoidably detained appearing in court on behalf of the Government. He would have wished to have been here today.
The noble Lord, Lord Kingsland, said that this is an issue for a much more extensive debate. I could not agree more with that, although I should be unwise to make any sort of commitments about having a debate in the House. That must be a matter for the business managers, as he well knows.
The noble Lord described crime as the single greatest threat to people's lives and livelihood. I agree. He welcomed the White Paper, for which I am grateful. He said that the philosophy underlying the White Paper, which he described as right, was marshalling all of the component parts of the criminal justice system into an effective fighting force. I would not quarrel with that description of one of the very important foundations of the White Paper.
The noble Lord congratulated us on the IT announcement and on particular parts of the White Paper. I need not go through that. He indicated what he considered the most controversial parts of the White Paper but I note that he did so without indicating whether he supported or opposed them and said that further debate was required. I await that further debate with interest.
The noble Lord concluded with three particular points. First, he emphasised the importance of local justice. We thoroughly endorse the importance of local justice. That point is made specifically in the White Paper. Secondly, he referred to the importance of the probation service. He was absolutely right to underline its importance. It will have an increasingly vital role in the important supervision proposals that are made in relation to the correctional and sentencing parts of the White Paper. Thirdly, he emphasised the importance of the committee for criminal procedure. I thoroughly endorse its importance. As he knows, the White Paper proposes that that should be put on a statutory basis.
Similarly, I thank the noble Lord, Lord Thomas of Gresford—who speaks with particular experience on this issue, as he indicated at the start of his speech—for his support for significant parts of the White Paper. He raised various issues, with which I shall deal very quickly. First, he said that he hoped that prison would be regarded as a last resort in relation to sentencing. As he made clear, prison must be required for dangerous sexual and violent offenders: those who threaten society. We thoroughly endorse the idea that short prison sentences are very often not appropriate and sentencers should look for alternatives where appropriate.
The noble Lord raised the point that any indication by the judge about what the sentence might be if there is a plea of guilty at the point at which the judge is indicating which sentence will be passed would be without prejudice to any subsequent defence. I give him that assurance.
The noble Lord emphasised the point that there needs to be a balance between victims and witnesses on the one hand and the defence on the other. He said that in certain trials it is of course important that there should be robust testing of the evidence of the victim and witnesses. I thoroughly endorse that but we believe that there must be a rebalancing under the present system without in any way compromising the justice to which the defendant is entitled. He described our proposals in relation to pre-trial disclosure, which make impositions on both the prosecution and the defence, as balanced. I am grateful for that.
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