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Lord Thomas of Gresford: I speak to Amendment No. 138 which, in my opinion, is one of the most important amendments in the Bill. If the Government want to do anything about cost and delay, they must tackle the scandalous situation which has arisen in the past two or three years in respect of the failure of the Prison Service and private security firms to deliver prisoners to court in time, and sometimes at all.

My recent experience covers the Wales and Chester circuit, the northern circuit, the Midlands circuit and the Central Criminal Court in London. Each circuit has the same problem. In the past, we attended court one hour before the hearing. If it was a 10.30 a.m. sitting, we would be there at 9.30 a.m. in order to see the client. Now, it is a complete waste of time to do that. I cannot recall a case recently which has started at the specific allocated time.

The various problems are these. First, there is an unwillingness between the Prison Service and private security firms to co-operate. Secondly, the private security firms, in particular, do not have enough personnel. Consequently, they traverse the countryside—outside London—carrying the prisoners to various courts, and are immune to any criticism made of them. Thirdly, on arrival at the court building, a period of time has to elapse while they arrange themselves and the practice has now developed—I understand as a result of insurance requirements—that no prisoner is taken to a conference

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room unless handcuffed to a member of prison staff. That is the position within the secure area of the court to which prisoners are brought. All that takes time.

Another problem is that the interview rooms are not properly manned. It happens all the time in Birmingham where there are 12 or 13 interview rooms but only five are manned at any one time. The result is that queues of lawyers, counsel and solicitors stand outside hammering on the door, trying to use the intercom to talk to Prison Service personnel, to people who are completely indifferent to the problems that the lawyers are facing and to the problems that the court upstairs is facing. It results in total frustration.

I referred to Birmingham and Wolverhampton. I remember one day recently when 28 prisoners were brought in custody to the court. They all arrived late. Only three interview rooms existed and the queue of lawyers stretched from the lobby before the entrance to the secure area right across the main hall of the court. Everyone was standing around wasting time and wasting public money.

The judges have no means of doing anything about the situation. They have no coercive powers whatever. Some shrug their shoulders; others do what they can. I know of one judge, for example, who, whenever there is a delay in his court, writes a letter and keeps a copy. In a short period of time, he has acquired a thick file which he intends to send to the Lord Chancellor's Department when a particular private security firm is seeking to renew its contract. That is the only weapon that there is—namely, the contract.

The amendment proposes that the judge is given the power to make an inquiry at the time to establish whether he is being lied to as regards where the prisoner has been taken—that has happened in the past—and to establish the reasons for the delay. Subsequently, the judge could order costs against the Prison Service or the private security firm or wherever the fault may lie. That would instantly improve the situation.

At the moment, this country is spending millions of pounds in paying lawyers for hanging about unable to do their jobs. It is paying millions of pounds for wasted court time. It is an amazing sight to see a High Court judge sitting in his own court for a quarter of an hour because there is no person available to man the dock and therefore no prisoners can be brought in. That happened recently to me in an important Crown Court in the Midlands.

That issue must be tackled. It must be dealt with. The contract system simply is not working. I hope that I shall hear something from the Government which will address this particular problem. It is a scandal.

11.45 a.m.

Lord Goodhart: Before the Minister replies, the issue of the press, raised by the noble Lord, Lord Hunt of Wirral, is the subject of the single amendment in the next group. I did not speak to it as I asked for it to be

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degrouped because it is sufficiently important to require its own group. Perhaps the Minister will bear that in mind when replying.

Lord Donaldson of Lymington: I speak to Amendments Nos. 134 and 135 which are perhaps related to Amendment No. 137A. I cannot see how the proposal would work if "wilful" were substituted for "serious". The number of cases in which the press "wilfully" misconducts itself can be counted on the fingers of one hand, if they exist at all. The press lack wilfulness because it is simply negligent. There is a combination of the reporter who misunderstands and the sub-editor who does not understand either, and so forth, which leads to serious misconduct and everyone throws their hands in the air and says, "Well, I'm terribly sorry. It shouldn't have happened and we shall try to ensure that it doesn't happen again".

The question of costs only arises in the Bill if there is not only misconduct, but serious misconduct. Therefore, I cannot understand what is wrong with that. Amendment No. 138 clearly deserves maximum support and I hope that the Minister will be able to say that this is something which will be tackled and will be tackled energetically. She obviously has instructions not only from the Lord Chancellor but also from the Treasury and this is wasting public money. Therefore, one might expect the Government to endorse it enthusiastically.

Baroness Scotland of Asthal: The noble Lord, Lord Hunt, made comments in relation to the chilling effect on local and regional newspapers. I believe that he described the arbitrary way in which costs may be awarded. That procedure will be applied by the courts exercising their judgment judicially. It would be fair to say that the courts have never in the past exercised that duty in an arbitrary way. Therefore, implicit in these provisions in the Bill is that they will continue to behave in the same proportionate way as they have historically.

Before I turn to the particular amendments, there is already an acknowledgement that there is a difference between regional and national newspapers. In contempt cases, the courts have accepted that the fact that a newspaper is regional and not national is a mitigating factor in deciding what the penalty should be. We believe that the same would apply to the new cost provision. I wanted to say that before turning to the amendments.

Amendment No. 133, tabled in the names of the noble Lords, Lord Goodhart, Lord Thomas of Gresford and Lord Kingsland, proposes that the court may order the third party to pay,

    "all or any part of the",

relevant costs—in other words, to decide the proportion of costs that the third party should pay.

The intention in this clause is to shift the burden of costs to those who cause them to be incurred or wasted. We also intend that where costs are to be paid, it will be for the courts to decide, after considering all the relevant circumstances, whether it is appropriate

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for the third party to pay all or only a proportion of the relevant costs. We believe that approach is proportionate and reasonable. I know that this is a probing amendment, so I wanted to say that clearly.

The new section that the clause adds will form part of a group of sections on costs in the Prosecution of Offences Act 1985. We believe that, as far as possible, the wording of the new clause should be consistent with that in other sections. Spelling out,

    "all or any part of the costs",

would create a contrast between the new section and the existing Section 19(1) of the 1985 Act, which provides that,

    "The Lord Chancellor may by regulations make provision empowering [the court] in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs".

Including "all or any part" in one section but not another could form the basis of an argument that the section that did not include that phrase did not permit an order to be made as to part of the costs only.

In addition, the amendment is unnecessary. Our wording already allows the court to make an order for part or all of the costs. I hope that satisfies the noble Lord. I see him indicating that that is so.

Amendments Nos. 134 and 135, to which the noble Lord, Lord Hunt, spoke, would define the meaning of the impropriety that may cause costs to be wasted or incurred. I concur with the comments of the noble and learned Lord, Lord Donaldson, about that. Amendment No. 134 would refer only to "misconduct", rather than "serious misconduct". Amendment No. 135 would define the impropriety as "serious and wilful misconduct". We chose the term "serious misconduct" because we do not want to include all misconduct. We want to catch those whose improprieties are considered serious or grave, such as the juror who prefers to go to the races rather than attending court, or a newspaper that publishes a prejudicial article that causes a criminal trial to be adjourned or abandoned. There is no need to remind the Committee that the Sunday Mirror published an article that caused the first trial of Woodgate and others—more popularly known as the Leeds footballers case—to be abandoned, at considerable cost to the taxpayer.

We do not want to catch a juror who is late for court through his own fault, but only by quarter of an hour. His lateness is clearly misconduct of a sort, but it may not be considered serious and the resulting wasted costs may be inconsiderable. We believe that "serious" is necessary and removing it would widen the scope of the legislation beyond that which was intended.

We view the addition of "and wilful" also as limiting and unnecessary. An impropriety may be serious, but at the same time it may not be wilful. For example, to publish a newspaper article reckless of the potential impact on a trial should be capable of being caught by the clause, even though it may not have been done wilfully, in the sense that there was no wilful intent to disrupt the administration of justice. It is reasonable to

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believe that a professional journalist or editor would understand the high degree of care that needs to be taken with articles about those involved in or related to current criminal proceedings. However, the same could not necessarily be said about the average man in the street who is not subject to any professional obligation and may be unaware that certain actions could have a detrimental effect on any proceedings. The court will be able to take account of these different considerations in determining whether, in the particular context, an impropriety should be treated as serious misconduct. "Wilful" could unduly restrict the court in cases of reckless acts or omissions where a third party costs order would be appropriate.

Under Amendment No. 136, when the court is considering making a costs order, the third party must be notified and given the opportunity of making representations before any such order is made. Of course we accept that the third party must have a right to a hearing, but we propose to provide for that in regulations and not in the Bill. On the notification of and representation for third parties, the Government intend to follow the provisions in existing regulations.

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