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Business
4.41 p.m.
Lord Grocott: My Lords, I have two brief pieces of information. First, the start of the Grand Committee on the Local Government Bill has been delayed for the entirely sensible reason that noble Lords who wish to participate in the proceedings on the Bill wanted to take part in the exchanges that we have just been having. That Grand Committee will now resume at 4.50 p.m.
Secondly, perhaps I may say to the House what I normally say on these occasions. We are about to start a Second Reading debate on a very important Bill. Many noble Lords have put down their names to speak in the debate. The arithmetic is as follows: with around 30 speakers and starting now, if the contributions were limited to around eight minutes, then we should finish at about 9.45 p.m. I am talking about the Back-Bench contributions now. I saw some alarm on the Front Bench when I said that.
At the other end of the scale, if the contributions were around 12 minutes, we should finish at 11.30 p.m. It is not a time-limited debate. I am therefore not instructing anyone about anything. I am simply reminding your Lordships of the arithmetic.
Lord Ackner: My Lords, before my noble friend sits down, in giving what was advice to speed up the
debate, has he taken into account that there are two volumes in relation to the Criminal Justice Bill? One volume contains 306 clauses and occupies 175 pages. Volume 2 contains 23 schedules and occupies 200 pages. Is this not more a case for giving us two days for the Second Reading rather than trying to hide the time we are entitled to use?
Lord Grocott: My Lords, very briefly, because I do not want to prolong this exchange, I simply repeat that this is no injunction. I am not able to give an injunction. I am suggesting to the House that I have no doubt whatever that all the detailed issues relating to the Criminal Justice Bill will be considered in detail in Committee, on Report and at Third Reading. As we all know, the Second Reading is a debate about the general thrust and principles underlying the debate. I am not telling anyone how long they should speak for; I am simply pointing out the consequences of the various time lengths for each speech.
Lord Donaldson of Lymington: My Lords, with the greatest respect to the Minister, it is impossible to cover all the generalities of this Second Reading, even if individual speakers speak only to three parts of the Bill, as for instance I intend to do. Even so, I do not believe that justice can be done to this monstrous Bill, or momentous Bill, in a time-limited debate. I know the noble Lord is not imposing a guillotine but if he says to the House, "If you take 15 minutes per Back Bencher, you can expect to sit here until two o'clock in the morning", it is not a guillotine but it comes jolly near to it.
Lord Renton: My Lords, this might have been easier if we had been about to start the Second Reading of the Bill at say 3.10 p.m. It is now a quarter to five, so we have lost an hour and 35 minutes.
Lord Grocott: My Lords, if I respond any further to these exchanges we shall lose even more time. I suggest I let the Second Reading proceed.
Criminal Justice Bill
4.44 p.m.
The Lord Chancellor : My Lords, I beg to move that this Bill be now read a second time.
The Gracious Speech said that at the heart of this Session's legislative programme is a commitment to reform and rebalance the criminal justice system, to deliver justice for all and to safeguard the interests of victims, witnesses and communities. This Bill is a major contribution to meeting those commitments.
We can be in no doubt that reform is needed. Too many people escape justice. Nearly a quarter of defendants commit at least one offence while on bail. Twelve per cent of those bailed fail to appear at court. Every year over 60,000 trials do not go ahead on the day planned. A further 70,000 trials crack on the day that they are due to be heard. So over half of all
witnesses who attend court do not give evidence. Every time a case collapses or the verdict is perceived as unjust, a victim's suffering is made worse.Those who have met the people who work in the system or are victims of crime will know all too well that the system is in desperate need of reform and that the reform will need to be far more than skin deep if we are to deliver what communities want, expect and deserve from the system.
The Bill sets out to deliver reform across the whole system. Its 14 parts cover police and prosecution procedures, criminal proceedings and evidence, sentencing, and various other miscellaneous provisions. It is brought forward by three criminal justice Ministers—my right honourable friend the Home Secretary, myself and my noble and learned friend the Attorney-General—acting in unison.
I shall be brief in introduction. Many noble Lords have indicated that they wish to speak in this debate. I know that they will bring their considerable expertise in these areas to bear on this Bill.
While the Bill was in another place, we were very open to constructive suggestions for the Bill's improvement. All of us, including my noble friend, the newly-appointed Minister of State for the criminal justice system and law reform, will listen very carefully to all that is said during this debate and in the months to come.
Part 1 makes amendments to the Police and Criminal Evidence Act 1984, following a joint Cabinet Office/Home Office review in 2002. Clauses 1 to 6 aim to simplify procedures, reduce burdens, save resources and speed up justice, without compromising basic rights. Clauses 7 and 8, which are about fingerprinting and the taking of DNA on arrest, will help the police in the detection of serious crimes. Clause 9 is aimed at getting up-to-date guidance out to operational police officers at the earliest possible point, but we recognise that this should not be at the expense of proper scrutiny.
We agreed in another place that we should seek to amend this clause so that all new codes and any significant revisions should be subject to the affirmative resolution procedure.
Clause 11 introduces a power of arrest for class C drugs, for very limited use, in respect of cannabis when it has been reclassified from class B to class C.
Clause 12 allows for under-18s in limited circumstances to be drug-tested on arrest. It will be piloted before being fully implemented. It is one of a number of clauses about drug testing and treatment, including Clause 19—restriction for bail for drug users—and Clause 154, Clause 251 and Clause 264, which form part of a package of measures designed to address drug misuse and offending in our comprehensive anti-drugs strategy.
Part 2 of the Bill contains proposals to reduce offending on bail. In particular, Clause 15 creates a presumption against bail where a defendant fails to turn up to court without reasonable cause.
Parts 3, 4, 5 and 6 will each contribute in different ways to the better management of the criminal justice system: first, by allowing the CPS to attach conditions to cautions; secondly, by transferring the responsibility for charging in non-routine cases from the police to the CPS; thirdly, by providing for a new regime for disclosure in criminal cases; and fourthly, by changing the procedure to be followed in magistrates' courts for determining whether cases triable either way should be tried summarily or on indictment.
Part 7 makes a number of reforms to the process of jury trial. The Government are not mounting a wholesale attack on trial by jury. Far from it. The proposals in the Bill are limited. Clause 41 would allow for judge-alone trial where the defendant requests this. Clause 42 would allow it in long or complex cases involving serious fraud, commercial or financial issues. That is not because we doubt the competence of the jury, but because the trial places too great a burden on the jury and because the indictments have to be severed to make jury trial manageable. Clause 43 would allow for judge-alone trial where there is a real and present danger that jury tampering would take place, and Clause 45 would allow it where a jury has to be discharged because tampering has already taken place. Those measures will help to protect juries from intimidation and interference.
Jury trial will continue to be the norm for the vast majority of serious cases. The Bill respects and safeguards that central principle of our system.
We also propose to table amendments that will give effect to one of the proposals in the Law Commission's report on multiple offending, in which trials in cases of repeat similar offending would be managed in a new way. First, there would be a conventional jury trial on specimen counts. In the event of a conviction, a second stage trial on counts linked to those specimen counts would take place before a judge alone. In that way, the court would be able properly to sentence a defendant for the true extent of his offending.
Part 8 extends current provisions to enable any witness to give evidence using live links in the interests of efficient or effective administration of justice. Part 9 introduces an interlocutory prosecution right of appeal against judicial rulings in the Crown Court that have the effect of stopping the trial early, before the jury has been asked to consider the evidence. We propose to extend the right of appeal also to non-terminating evidential rulings.
Part 10 proposes an exception to the double jeopardy rule for very serious offences. That change has been backed by the Law Commission, the Home Affairs Select Committee and Sir Robin Auld's review of the criminal courts. The proposals will enable the Court of Appeal to quash an acquittal, enabling a retrial to take place where there is compelling new evidence against the acquitted person and the court is satisfied that it is in the interests of justice for there to be a retrial. Significant safeguards are included.
The next part of the Bill reforms the rules of evidence. The widest range of evidence should be available to juries that will enable them to reach a just
verdict. The current rules are confusing and difficult to apply. They can encourage defendants and lawyers to view the criminal justice system as a game, and can dissuade witnesses from testifying for fear of having their character attacked in court. The reforms in Part 11, Chapter 1, will enable judges to let juries hear about a defendant's previous convictions and other misconduct where that is relevant to the case and provided that there is not an adverse effect on the fairness of the proceedings.Our proposals go significantly further than the Law Commission's recommendations, giving a clear steer that relevant evidence should be admitted as far as possible. Sir Robin Auld called for a move away from technical rules of admissibility in favour of trusting magistrates and juries to give relevant evidence the weight that it deserves. We agree.
Chapter 2 of Part 11 will provide a comprehensive scheme to replace the current complex and inconsistent rules relating to hearsay evidence. Evidence will be automatically admissible in some cases; judges will have the power to admit other relevant evidence, subject to safeguards; and the reforms will assist witnesses in giving evidence.
Part 12 will transform the sentencing framework in England and Wales. In the White Paper, Justice For All, we recognised that the current sentencing framework is not sufficiently flexible. Sentences properly tailored to the offender and the offence would reduce the chances of further offending. Many of the elements of prison sentences, community sentences and the sentencing process have developed piecemeal since the Criminal Justice Act 1991. That has created a lack of clarity in the system as a whole.
Part 12 overhauls sentencing from the courtroom through to prison and probation. It is largely based on the recommendations of Mr John Halliday, in his review of the sentencing framework, on which there was widespread consultation. For the first time, the purposes of sentencing will be explicit in statute as: punishment; public protection; crime reduction; reform and rehabilitation; and reparation. Those purposes are complementary. It will be up sentencers to determine what weight to accord to each in a particular case.
Much has been said recently about the independence of the judiciary and the effect of some of our policies on it. Let me make quite clear—as I have recently on several occasions—that the independence of the judiciary is vital. It is essential for the rule of law that that is so. The Government fully recognise and support the position of the judiciary on the decisions that they make on individual cases.
We also believe that Parliament has an important role in setting the framework. Chapter 1 of Part 12 sets out key principles. Alongside the existing principle that the severity of sentence should reflect the seriousness of the current offence will be the principle that previous convictions, where recent and relevant, should be treated as an aggravating factor when determining the severity of a sentence.
Clause 146 extends the sentencing power of magistrates' courts to 12 months in respect of one offence and 15 months in respect of two or more offences for which the terms are to be served consecutively. That change will allow magistrates to impose the short custodial sentences and intermediate sanctions that the Bill will introduce, and will encourage them to retain more either-way cases for trial, thus freeing up Crown Court time.
Clauses 160 to 166 set up a sentencing guidelines council to promote sentencing consistency. The council will produce a robust and comprehensive set of guidelines for all courts, enabling them to approach a case from a common starting point. A single set of guidelines will be a clear aid to consistent sentencing and will improve public confidence.
Under Chapters 2, 3 and 4, the current range of community sentences will be replaced by a single sentence, within which sentencers will have flexibility to put together a tough package specifically tailored to the needs of the case and the offender. Prison sentences of less than 12 months will be replaced by custody plus—a short period in prison followed by a longer period under supervision in the community. There will be provision for some offenders to serve custody plus intermittently, thus allowing them to maintain ties with the community; and for a suspended sentence with requirements, as with a community sentence, under which progress will be reviewed by the sentencing court and the original custodial sentence enforced in the event of breach.
Clause 235 simplifies the structure for release of prisoners serving more than 12 months, with automatic release at the half-way point and licence conditions biting right until the end of the sentence.
Chapter 5 introduces new arrangements for dangerous offenders. An offender who has committed a sexual or violent trigger offence for which the maximum sentence is less than 10 years, and who is assessed by the court as dangerous, will be given an extended sentence. Release from that sentence will be on recommendation of the Parole Board, and extra periods of supervision following release must be attached. Offenders who have committed a trigger offence for which the maximum sentence is 10 years or more, and whom the court has assessed as dangerous, will be released only if they are considered by the Parole Board to be manageable in the community. That sentence will therefore provide for the indeterminate detention of those most dangerous sexual and violent offenders who continue to pose a risk to society.
In response to the judgement of the European Court of Human Rights in the Stafford case, and the judgement of the House of Lords in Anderson, Chapter 7 establishes a new scheme for tariff setting in murder cases. Under that system, the court, rather than the Home Secretary, will determine the minimum term to be served in prison by a person convicted of murder. The length of that minimum term is to be determined by reference to a new statutory framework set out in
Schedule 17. Once the minimum term has expired, the Parole Board will consider the person's suitability for release, and, if appropriate, direct his release.Chapter 8 alters penalties. Clause 270 increases the maximum penalties for the three offences of causing death by dangerous driving, causing death by careless driving while under the influence of drink or drugs and aggravated vehicle taking where, as a result of driving the vehicle, an accident occurs and death results.
Clauses 271 to 276 introduce a mandatory minimum sentence for firearms offences. This is a clear demonstration of the Government's commitment both to deter criminals from using firearms and to ensure that they receive an appropriately tough custodial sentence on conviction. The Government will also be tabling an amendment to increase the maximum penalty for trafficking in endangered species from two to five years.
Part 13 contains further important reforms to the system. Notably, Clause 284 will amend Schedule 8 to the Terrorism Act 2000 to give the court the power to extend the period of detention of a person suspected of terrorist activities from seven days up to a total of 14 days.
To supplement this provision, we propose also to table amendments to bring the penalty for fraudulently obtaining a driving licence in line with that for fraudulently obtaining a passport, and to make both offences arrestable. We know that organised criminals and terrorists rely on documents such as passports and driving licences in order to travel and access financial services. Obtaining these documents is a gateway to other offences.
Clause 291 and Schedule 27 provide that anyone summoned to do jury service will be required to do it unless they can show good reason to have their summons deferred or excused.
In two provisions designed to improve our response to young offenders, Clauses 292 and 293 introduce a provision to attach an individual support order to an anti-social behaviour order made against a young person aged between 10 and 17 years and Clause 294 and Schedule 28 allow a parenting order to be attached to a referral order.
Clauses 295 to 297 strengthen the current statutory arrangements for local police and probation services to monitor and manage the risks posed by sexual and violent offenders in the community by requiring other bodies to be involved in the arrangements. An amendment will be brought forward to add local education departments to these bodies. Clause 298 and Schedule 29 take forward some of the recommendations of a recent independent review of the operations of the Criminal Records Bureau to support a programme of improvements in performance in the bureau.
This is a comprehensive measure. On many areas there is general agreement in principle and, as we have said, we shall be ready to take on board further suggestions for improvements to the detail. As further evidence of this, we propose to bring forward
amendments to improve the operation of criminal appeals which have been recommended to us by the Lord Chief Justice and his colleagues. We are also considering the amendments which were tabled in another place to strengthen, if possible, the protection of victims of crime from civil claims by offenders.This is an important measure which will provide significant improvements to justice and the operation of the system. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
5.3 p.m.
Baroness Anelay of St Johns: My Lords, I thank the noble and learned Lord the Lord Chancellor for outlining the objectives and provisions of this major Bill. The only personal interest I should register at this point is the same as that of the noble and learned Lord the Lord Chancellor in that I am married to a barrister who sits part time as a recorder. At this point perhaps I may also add my congratulations to the noble Baroness, Lady Scotland, on her promotion to Minister of State at the Home Office.
As I have in the past, I can state categorically once again that of course we want to see a far more effective fight against violent crime than the Government have managed so far. It is right to be tough on crime, but we must take care to avoid rough justice. We support most of the measures in the Bill, but we and noble Lords around the House have said repeatedly that we also need to be very cautious before throwing out ancient liberties.
The principles of the right to trial by jury for serious offences, of the presumption of innocence, and the idea that trials should not be skewed against the defendant are long established. They are rooted in justice and common sense. We will resist any erosion of liberty that is not backed by overwhelming arguments in its favour.
It is vital to ensure that the public has confidence in the criminal justice system. That means that the victims of crime should be confident that Parliament has made the appropriate penalties available for the judiciary to impose. But more than that, it should mean that we do everything in our power to ensure that people do not become victims in the first place. That includes putting more police on the streets out there preventing crime, and solving it.
Victim Support made that point in a letter to me dated 16th April, pointing out that successive governments since as long ago as 1974 have improved the way that our criminal justice system treats people affected by crime, but only 3 per cent of victims have their cases resolved by the criminal justice system and only 1 per cent receive compensation for violent crime. I agree with Victim Support that there is still much to be done both inside and outside the criminal justice system to provide help to overcome the effects of crime.
The House has a great deal of work ahead of it to scrutinise and improve the Bill. In another place, the Government inserted a large number of significant
new clauses and schedules at Report stage, when they could be given little scrutiny and, according to the procedure there, could not be amended. Indeed, on two occasions on Report in another place, government Ministers ran out of time before they could even finish introducing their own groups of amendments. That is clearly unacceptable.The guillotine was wielded with vigour. My own colleagues were so concerned about the cavalier attitude of the Government to debate on Report that they voted against the timetabling Motion on 19th May, with the support of the Liberal Democrats. As the noble and learned Lord the Lord Chancellor has explained today, we know that the Government intend to introduce even more new measures in this House. No doubt some of those will be very welcome, but all will need careful scrutiny.
On 20th May in another place (at col. 968 of the Official Report) the Home Secretary mentioned one measure that he would introduce in this House. He sought to bring forward amendments to prevent burglars from obtaining compensation from their victims where he or she had defended themselves proportionately. That would be welcome because of course it is the substance of an amendment introduced in another place by my honourable friend Dominic Grieve. So we shall certainly need time to scrutinise properly the detail of the Bill.
However, I have to say to noble Lords that so far I have been offered only one day in Committee before the Summer Recess. I hope that soon I shall hear more from the Government managers on that, especially in the light of the statement made at Third Reading in another place by the Home Secretary (at col. 968 of the Official Report) that he expected Royal Assent in the early autumn. I hope that his definition of "early autumn" is late November or December; who can say?
Turning to the provisions of the Bill, I shall simply outline some of the main areas of agreement and objection. We welcome the plans to increase the sentencing powers of magistrates to 12 months, but we object to the freedom given to the Home Secretary to increase that period to 18 months by way of an affirmative statutory instrument. We believe that it should be done by primary legislation, and I am encouraged to note that, in its 21st report, the Select Committee on Delegated Powers and Regulatory Reform agrees with me. I hope that the Government will note carefully its recommendation.
We welcome several measures introduced on Report in another place that improve the sentences available to the judiciary. We welcome, too, the proposals mentioned today by the Lord Chancellor to increase the maximum sentences on serious driving cases to 14 years. That response reflects appropriately public concern about these matters.
We welcome the Government's willingness to look at new methods of avoiding custodial sentences where appropriate. We shall want to look carefully and constructively at their interesting proposals for custody plus and custody minus. But of course neither will work satisfactorily unless the Treasury can be persuaded to provide the funds.
We have considered very carefully the Government's proposals for a sentencing guidelines council and their proposals for sentencing for murder. Over the past few months, my right honourable friend Oliver Letwin and I have listened carefully to the views of our colleagues in another place and to those of our colleagues on these Benches, as well as from around the House. We think that it is a mistake for the Government to include juveniles in the 15-year category. We hope that the Government will think again. The Home Secretary indicated in another place that he might be minded to listen to further arguments on that.
We support the concept of a sentencing guidelines council, but we do think that it is extraordinary to create the council in this Bill, and then, in the very same legislation, to introduce a set of sentencing provisions which have not gone through that process. We believe that members of the council should be drawn only from the judiciary and that their recommendations should be scrutinised by a Joint Select Committee of both Houses. We would suggest that, at least in the case of recommendations on murder, those sentencing proposals should then be subject to debate in Parliament using the negative resolution procedure. We believe that that offers the right balance of democratic accountability and respect for the judiciary.
I anticipate that our debates on the sentencing proposals will take some considerable time, given the expertise and strength of feeling in the House. I undertake to listen very carefully to all views from around the House and, as the noble and learned Lord said in his opening remarks, I hope that the Government do the same.
But the portents thus far have not been encouraging. I have been dismayed by the intemperate language used by the Home Secretary in describing some of the judiciary. The easy case is always to bash the judges if one disagrees with the sentence given in a particular instance. That is not a mature response for a politician.
Our job is to get the law right in the first place as it passes through our hands here. We should not whinge if the Court of Appeal Criminal Division interprets and applies the law in a way that displeases us. It is the job of the Court of Appeal to interpret the law and apply it to the facts of the particular case before it. It is our job to amend the law if cases show that we have not achieved our objective. The Bill gives us that opportunity. We should seize it.
So far I have been as welcoming as I can be of the Government's proposals, but there remain three issues about which we have the gravest concern. First, as regards the issue of retrial, we agree that there should be one opportunity for a retrial where there is compelling new evidence that was not available in the first instance. But it is vital that the possibility of a retrial should not be used as an excuse for a less than thorough initial investigation and presentation of the case. We believe most strongly that a retrial should be restricted to offences of murder and rape, and not extended to the huge list in Schedule 4. We shall bring forward our detailed arguments on that in Committee.
Secondly, as regards evidence of bad character, we accept that there are good arguments for putting into statute the current practice for admitting evidence of bad character. We agree with the view of the noble and learned Lord the Lord Chancellor that there is a need for clarification. At the moment, we believe that the Government have quite simply, as the Bill is currently drafted, got the balance wrong between its probative and prejudicial effect. We will need to ask the Government to put that right because, if we fail, there will be a serious risk of people being convicted on the basis of their past criminal record and not on the basis of the facts of the alleged offence before the court.
Finally, I turn to the issue of trial by jury—or, as in the case of the Bill, trial without jury. We believe that it is wrong of the Government to chip away at our right to trial by jury in Crown Court cases. Juries are an important part of a healthy democracy. They represent public participation in the criminal justice system. We know that a vast majority of the public have confidence in jury trial and back a role for the jury in the justice system wherever possible. The Government have tried twice before to restrict jury trial in measures brought before the House. Each time the House has asked them to think again. Now the Government have returned with the same objective dressed in new arguments—but the new arguments are as flawed as the old.
The right for a defendant to select trial by judge alone looked minimally objectionable at first. That is until, in another place, the Government's case was torn apart by their own honourable friend Vera Baird. She revealed the hidden dangers it posed to the interests of both the defendant and the public.
The Government state that long and complex cases are too burdensome for juries to hear. We say that the solution is to make sure that the prosecution presents a case simply and effectively and concentrates on the essentials. That is the discipline that jury trial should impose upon the prosecution.
I turn to the issue of intimidation. Where there is an allegation of jury intimidation, surely we should try harder to protect the members of the public who do their job as jurors so conscientiously. I take the opportunity here to pay tribute to all of them. If we start down the route of abandoning jury trial where we fear intimidation, we are on the slippery slope to no jury trial at all. My noble friend Lord Hunt of Wirral will lead us on the issue of jury trial. He will work to build a coalition around the House to remove Part 7 from the Bill in its entirety.
There is so much of value in the Bill that it must not be tarnished by this attempt to make inroads into jury trial. We ask the Government to listen to the argument, and to think again.
5.15 p.m.
Lord Thomas of Gresford: My Lords, I, too, thank the Lord Chancellor for his introduction of this lengthy Bill. I am not quite sure what to call him now, whether it is the Nabob of Wales or the Sultan of
Scotland. Over the week-end I have been in both countries, where his appointment has not been greeted with great joy. However, I am rather flattered that the Government have come round to the view that the responsibilities for criminal justice and for Wales combine very well together.I also welcome the noble Baroness, Lady Scotland, to her new responsibilities. We have all enjoyed her contributions to the House. We know that she will perhaps be something of a buffer against other influences in the criminal justice field.
The Criminal Justice Bill contains some sensible reforming measures which have been well thought through, are practical and will get our support. Other proposals are very much more controversial and will be the subject of debate. We on these Benches will attempt to amend or delete them. Some recent high profile additions to the Bill by the current Home Secretary are simply daft and we hope that all sensible Members will ensure that they are removed.
Perhaps I may make two general observations. The criminal justice system does not belong to lawyers and judges; nor to the police; nor to politicians. It belongs to and springs from the people. There are no watertight compartments of victims and criminals. So often our debates seem to suggest that there is a white and black situation when in fact very often a criminal today is a victim tomorrow. In violent crime the chief prosecution witness very frequently has a long list of convictions himself. It therefore follows that witnesses, who also tend to be regarded as being in a watertight compartment, may be totally detached, unbiased and worthy of belief, or they may be completely involved in what has happened.
The public's ownership of the criminal justice system has important consequences. It is essential that the people have trust that the system is fair and effective, both in investigation by the police and in the trial process itself. If there is a general belief that police investigations are not scrupulously fair, rigorous and professional, then victims will not complain, witnesses will not come forward and juries and magistrates will be sceptical and will convict reluctantly.
Public confidence can be undermined in a number of ways. There have been many high-profile appeals in which inadequate police investigations or dishonest scientific evidence have come to light. I need not refer to such cases. Attacks on the system, and on the judges and lawyers who are part of it, from people in responsible positions, such as the Home Secretary, also undermine the trust of the people in our system.
If sentencing is disproportionately harsh and out of step with public opinion there will be no convictions. That has happened in the past, where juries refused to convict when there was capital punishment or transportation. It is obvious from the Bill that the Government have paid no heed to the Halliday report proposals that sentencing should be proportionate to the seriousness of the crime and should be based upon proper research evidence to the effect that neither deterrence nor incapacitation—removing people from the public—should be relied on as a justification for sentencing.
My second observation is this. All round the House, lawyers who have experience of the criminal law tend to differ from a number of others, the Home Office and elsewhere in this way. We see those who have committed criminal offences as individual human beings, not as demons. In my own case, 45 years of practice in the criminal courts at all levels, as prosecutor, defender and judge, have brought me into close contact with many people charged with and convicted of crime. Some are deranged; some, by reason of the circumstances of their upbringing, are hopelessly inadequate and illiterate; some are perfectly intelligent and capable, but have been denied the opportunities of education and employment, and have taken to crime as their only route to success. Many of those individuals need medical treatment. Through training and education, some are capable of rehabilitation and redemption, others need to be locked up for the safety of the public, and none of us has any hesitation in doing that when it is necessary. However, a fair society requires that the circumstances of each crime and each convicted criminal be considered individually. In each case decisions must be taken that best protect the public. It is a highly developed skill that we as a society entrust to people of integrity and experience, whom we call judges.
This Home Secretary claims that his status as an elected representative of the people permits him, he thinks, first to attack the lawyers, then the judiciary, and now the police. Apparently, we are to have elected chief police officers and elected public prosecutors. No one elected him to be the Home Secretary. He was appointed without any background or experience in that field. He clearly does not seem to understand the system and his constitutional position, and it is hoped that he will go on his way in as short a time as possible.
Mr Blunkett talks as though lawyers are remote from reality and that only he understands the concerns of ordinary people. I, too, come from a council house, in Wrexham, built on an estate where a very famous judge used to live, who had an even faster meteoric career rise than the noble and learned Lord, Lord Falconer. He was Attorney-General at 32, Lord Chief Justice at 36 and Lord Chancellor at 38. He was as much a politician as a lawyer and was greatly concerned with punitive justice.
I was brought up in a police family, in a police station. From that point of view, I have every knowledge of the inside of police stations. I live in a village which, as many of your Lordships know, is always to be associated with tragic memories of one of the world's biggest colliery disasters. I live in an area devastated by steel closures and the loss of heavy industry, suffering deprivation and unemployment. But for the people of my community this Home Secretary goes out of his way to create fear of crime and distrust of the criminal justice system; and, by playing to the popular press, he does not, in my view, act in their best interests nor those of the people who voted him into parliamentary office.
Incidentally, Wrexham's only Lord Chancellor, the one to whom I earlier referred—I regret to say the only one in history—was described in the Dictionary of National Biography, as
- "the worst judge ever to disgrace the Bench of England".
His name was Judge Jeffreys, of bloody assizes fame. He died in the Tower at the age of 42. Chancellors with Welsh connections should be wary!
Reverting to the Bill, there are four main areas that I want to address today. The first is the reduction of the rights of a defendant. From time to time attempts have been made to introduce measures that are supposed to balance the prosecution and defence, with no particular effect on conviction rates. In the Home Office Research Paper 199, The Right of Silence: the impact of the Criminal Justice and Public Order Act 1994, the authors write:
- "the statistical data presented in this study tend to suggest that there have not been changes in proportions of suspects charged, the level of guilty pleas or the proportion of defendants who are convicted, which can be related to the introduction of the provisions";
With regard to the admission of hearsay, a witness may say, "X told me that". Maybe he did. But how does one challenge the truth of what X says? How does the jury assess X's reliability? It may be mistaken, manufactured or inaccurate. Already we have exceptions to the hearsay rule where people are dead or overseas, or where formal records or reports have to be proved. But now multiple hearsay is to be admissible. We on these Benches will press amendments to ensure that any reforms in this field are compatible with Article 6(1) of the European convention, which guarantees the right to examine witnesses.
In relation to the admission of evidence about character, it is not realised how often a person's bad character is placed before the jury at his own request and for his own tactical reasons. Any attack on a prosecution witness or any attempt to pretend that he is of good character will result in his own character going in.
I have two main criticisms of these proposals. First, it is proposed that evidence of acquittals will be introduced, which is purely evidence of propensity. Secondly, we say that it is essential that the admission of any convictions must, in the judge's view, satisfy tests of relevance and importance to the issues of guilt or innocence.
There are proposals to require the defence to disclose their witnesses. Anyone with any experience knows that when an alibi notice is served, the police go to see the alibi witnesses. It is difficult enough to give evidence anyway, but even more difficult to give evidence for the defence when a policeman appears at one's door, asking "Are you really sure that that was what happened?" Sometimes their nerves fail; on other occasions police statements are obtained and used to cross-examine in minute detail. The disclosure
of defence witnesses would give rise to the possibility of police pressure, which will do nothing for the administration of justice.I turn to my second criticism, which relates to the abolition of the rule against double jeopardy. It is superficially attractive to say that there should be a retrial where very strong DNA evidence suggests that an acquittal was incorrect. But increasingly DNA cases will run their course. Today DNA is taken in every case, and there will be no surprises about it in the future.
The rule of double jeopardy protects us against inadequate investigation, poor presentation and provisional verdicts that hang over people for the rest of their lives. Rules provide for the protection of freedom, which we in this country have forgotten. The first things to go in our former colonies were juries. There have been political trials. I have in mind those of Mr Anwar in Malaysia, Mr Jeyeretnam in Singapore, and today in particular, since the noble and learned Lord, Lord Williams of Mostyn, was characteristically uncharitable about Zimbabwe, the leader of the MDC in Zimbabwe, who faces multiple charges of treason. In that country judges sit in criminal trials with lay assessors appointed by the registrar of the court from a list supplied by the Ministry of Justice, and they have to be qualified in the administration of justice or in any question or have experience and skill in any matter that may be considered in the trial.
This Government seek to introduce a Zimbabwean system of justice into an important area of the criminal process. The proposed abolition of juries in cases of serious fraud and cases in which there is a suspicion of jury tampering represents no reform at all. It is necessary to explain in simple terms to a jury what a fraud trial is about. It is entirely wrong that a person should be sent to prison because some arcane discussion has taken place in court which the ordinary citizen cannot understand.
In any event, the conviction rate is 85 per cent, higher than normal, in about 100 cases in the year. It is not this particular provision that concerns me, but where it leads. If juries can be abolished in such serious crime, why not, the argument will be in a year or two, in less serious crime?
Jury tampering is another issue. I am more concerned about jury intimidation, both by the police and from the public gallery. We all have experience of the family staring down into the court and intimidating witnesses, defendants and juries. But practical steps can be taken in sensitive cases to place juries out of view of the public gallery, to ensure anonymity for them and to provide protection as well. It is not necessary to abolish juries—just to take sensible, practical steps to deal with problems when they arise.
Finally, I turn to minimum sentences and fixed tariffs in life cases. The paradox is that crime is falling but prison sentences are being ratcheted up. Why are the Government constantly seeking to fetter not just the judiciary but the proposed sentencing council
before it has even begun to do its work? This is nothing new; we have argued about it many times. The proposals are arbitrary and will be examined by us with considerable care.Back to principle: do these provisions involve the public more deeply in the criminal justice system? Yes, they do, where the proposal is to make it less easy to avoid jury service, but no, in so far as there is an introduction of the abolition of juries in serious cases. Does the Bill see criminals as individual human beings, about whose future rational and just decisions must be made? No, it continues the process of demonising them with mandatory and minimum sentences which pay no regard to the particular problems they have had, the problems they pose to the public and their future rehabilitation.
This Bill will take us a very considerable time. Particularly with the noble Baroness, Lady Scotland, now involved, I look forward to it very much.
5.33 p.m.
Lord Woolf: My Lords, I begin, on behalf of the judiciary, by warmly congratulating my noble and learned friend the Lord Chancellor on both his appointments. They will be very important to the administration of justice at a time when we will be subject to a period of transition.
I also warmly echo the comments that have already been made about the promotion of the noble Baroness, Lady Scotland, to Minister of State. We in the judiciary admire the contribution she makes to this House very much indeed, and we are confident that will continue in her new role.
I hope it is appropriate if I take this, my first opportunity, to say a word about the noble and learned Lord, Lord Irvine of Lairg. I know, as does the judiciary, that he strove immensely to improve the administration of justice. For that and the other things he did, he certainly justifies the support and commendation of the judiciary.
This Bill is the companion of the Courts Bill, which the noble and learned Lord was responsible for introducing to this House last year. Some of the reforms contained in the Courts Bill and this Bill are capable of making significant improvements to the criminal justice system. The Government, Lord Justice Auld and Mr Halliday, upon whose distinguished, far-sighted reports much of the Bill is based, are to be congratulated on the provisions.
Unfortunately, there are differences of opinion between the Government and the judiciary as to certain features of the Bill—features on which the Home Secretary and I have agreed to disagree. In this situation, indeed, I ask your Lordships to act as arbiters, giving your decision as to the form the Bill should take after you have examined its provisions closely, so that it will make the maximum contribution to realising the improvements we would all like to see in the criminal justice system. It is, of course, obvious—indeed, it goes without saying—that
whatever form the Bill ultimately takes, when it becomes law it will be observed and applied by the judiciary.The views that I am about to express are not mine alone but also those of the senior judiciary, particularly the Lords Justices who preside in the Court of Appeal, Criminal Division, day in and day out, with whom I discussed these provisions last week.
There is no dispute, so far as the judiciary is concerned, that the criminal justice system needs improving. As to the workings of the criminal courts, the Auld report identified the failings and made recommendations as to how they could be addressed. As to sentencing, the Halliday report reveals weaknesses. It attempts to provide answers. The need for those answers is obvious; it is demonstrated by the deeply disturbing statistics that we all hear too often. Some 58 per cent of adults discharged from prison are reconvicted within two years of release, and nearly three-quarters of young offenders are also reconvicted within two years of release. But, as we have heard, the story is not entirely negative. Fortunately, crime overall is at a lower level than it was in the early 1990s.
A significant problem with the criminal justice system is that it is excessively complex. The Auld solution was to have an effective criminal procedure rule committee, with a membership of those who are intimately involved with what happens within the criminal courts. The committee would produce an understandable code for the conduct of proceedings in which practitioners could have confidence, because of the standing of the code's authors. The fact that those authors had first-hand experience of the system would give the code its authority.
The Auld vision of what could be achieved by the proposed criminal procedure rule committee impacts on the clauses in Parts 5 to 11 of the Bill. Among those clauses are some of the most controversial clauses in the Bill. This is especially true of the clauses which are seen by many as threatening what are generally regarded as fundamental safeguards contained within our criminal justice system. I am referring to the changes to the right to trial by jury, the rules of evidence and the retrial of serious offences.
I recognise that many strong and sincere opposing views will undoubtedly be advanced to your Lordships. In those circumstances, instead of becoming involved in the matters which will be well ventilated before your Lordships, I propose merely to stress that if these powers remain part of the Bill, it should be made clear that they can be exercised only when it is in the interests of justice for this to happen. That should ensure that there is the minimum risk of the exercise of those powers resulting in injustice. I urge the House that, particularly when introducing innovations of such a nature, within our system it is critically important to allow the trial judge to make the just decision in the light of the particular circumstances of the case, having heard the argument from both sides.
However, a characteristic of the relevant clauses, as drafted at present, is that they do not provide an unfettered discretion to that judge to say yes or no. The
provisions are bespattered with requirements as to what a judge must do. Some of the clauses provide a degree of discretion to the trial judge, but that is not always the case.A number of other clauses in the Bill inadvisedly anticipate the work of the criminal procedure rules committee. The clauses are not drafted as they would be drafted by that committee—with practical experience of litigation. Instead of reducing complexity they will increase it. They will also lead to an increasing number of appeals. I have not time to provide your Lordships with details of the matters to which I refer, so I have delivered to the Library a lengthy document that sets out what the judiciary, whom I represent, regard as being the problem areas. I hope that in Committee your Lordships will be assisted by that paper.
I turn to the sentencing provisions in the Bill. Like the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Anelay of St Johns, I welcome many of the provisions dealing with sentencing. A greater range of alternative sentences is to be welcomed. However, as has already been indicated, they will be valueless without the necessary resources.
The judiciary also have concerns about the amendments that were introduced into the Bill at a late stage in its passage through the other place. Again, they relate to judicial discretion. The conventional relationship between the judiciary and Parliament on sentencing is that Parliament should set out the framework in which the judge, or, on appeal, the Court of Appeal, should exercise their discretion in imposing the sentence. Consistency is important between one sentence and another—an appropriate degree of proportionality between the sentences for different offences.
To achieve the necessary consistency the Court of Appeal developed the practice of giving guideline judgments when dealing with a number of appeals in relation to a particular crime. Building on that practice the Sentencing Advisory Panel, an expert body, was established to advise the Court of Appeal, who have welcomed the advice from that body. The Bill proposes the establishing of a sentencing guidelines council. The judiciary welcomed the creation of a council consisting of sentencers. However, an amendment has extended the membership and, in doing so, has changed the character of the council. I ask your Lordships to look at the membership that is now proposed. Of course the persons referred to are persons with knowledge of the criminal justice system—senior policemen, senior civil servants—but should they be members of a body that is to give advice to the judiciary?
The Sentencing Advisory Panel already has a broad expert membership. Surely that is the body upon which additional members should be placed to advise the sentencing guidelines council without being part of its adjudication process. The council can and will consult whoever it wishes. If the council is to carry real clout, as it must if it is to be effective, its membership
should be confined to the judiciary. I was pleased to hear the comments of the noble Baroness, Lady Anelay.I turn to the statutory guidance for murder. Although the matter is an initiative without precedent, there is no constitutional reason why a statute cannot contain sentencing guidelines. However, providing guidance in a statute is not advisable. The guidance should be given by the council that the Bill establishes. Proposing a council to make guidelines at the same time as including one's own guidance in the legislation establishing the council is extraordinary.
I shall now summarise the difficulties I have with what is proposed—although, having heard the comments of the noble Baroness, I shall be brief. I endorse her suggestion on behalf of the judiciary. It is my contention and that of the judiciary that for the Home Secretary to fix the minimum period that a person convicted of murder should serve before his case can be considered by the Parole Board has now been shown to be unlawful. However, the statutory guidance that is the Government's proposed response is the responsibility of the Home Secretary. The council or the panel can carry out research and consultation. That was lacking in the case of the proposed statutory guidance that has been introduced into the Bill.
Your Lordships know that the majority of murders are not horror murders involving paedophiles, contract killers or psychopaths, but those committed between two individuals who know each other well—particularly when influenced by alcohol. There are also murderers who contend that they were acting in self-defence but are found guilty of murder because they used too much force. I recognise that there are some murderers who will never be released. There are then a range of other murders for which differing periods should elapse before the offender could be considered for parole. Finally, there are murders where the consequence of the crimes far exceed what the offenders intended, but tragically resulted in someone's death.
A year ago I issued new guidelines on murder that set out the periods that I thought were appropriate, having received the advice of the Sentencing Advisory Panel. The guidance echoed the advice of the panel. Before the guidance was issued I consulted the three Ministers concerned with criminal justice. They made helpful suggestions which I incorporated in the guidance when it was issued. I understood that that guidance was regarded as helping to achieve consistency. Until the decision in the Anderson case, that guidance was applied by the judiciary. The guidance resulted in recommendations that were either followed by the Home Secretary or differed only as to a nominal one or two years.
The Home Secretary's surprising response to the decision of the House of Lords in the Anderson case was to introduce the proposal that is now in the Bill for statutory guidance. That is out of line with the guidance for which I was responsible a year before, and which had been followed up to the Anderson case
without exception. Your Lordships may feel that the fact that that guidance was the response to a decision of the House of Lords indicates the problems that arise if sentencing becomes the subject of political interest.Therefore, when I heard of the suggestion made in another place by Oliver Letwin, it seemed to me that it was a way of achieving what was required. So if I may, I shall merely endorse the proposal made by the noble Baroness in her comments. It seems to me that the suggestion in her speech would be a way of squaring the circle and taking sentencing out of politics, which must be a most important objective, particularly in the case of crimes as serious as murder.
I am very conscious of the time that I have again taken up in your Lordships' House. I hope that the paper that I have provided will provide assistance. I shall merely indicate that there are very good things in the Bill, but we must not let the faults to which I have referred and which are contained in my paper destroy the quality of the proposals.
5.51 p.m.
Lord Harris of Haringey: My Lords, I begin by echoing the congratulations already given to my noble friends on their respective promotions.
I rather suspect that this Bill will not be without controversy in your Lordships' House. However, I also believe that many of the concerns that will be raised over the weeks and months ahead, and indeed many that have been raised today, will seem incomprehensible to many of those outside this House among the general public. I declare an interest as I chair the Metropolitan Police Authority. However, as an elected member of the London Assembly, I have to say that I am sure that most of my constituents will be—as I am—broadly and indeed enthusiastically in favour of the general thrust of the proposals.
For many people there is a crisis of confidence in our criminal justice system. It is being brought into disrepute by some of the problems that the Bill is designed to remedy. There is no question but that that system has in the past failed sufficiently to support the needs of victims and witnesses. Listening to the remarks from some noble Lords, I also fear that rather than defending juries, we are in danger of failing to treat them as adults by neglecting to give them the maximum amount of information and failing to allow them to use all the available evidence to make fully informed decisions.
It seems to me that what the Bill does is to create a level playing field on the admissibility of evidence. I cannot understand why those who oppose the Bill's provisions refuse to trust the wisdom and common sense of juries. I know that many noble Lords are or have been barristers; so I shall be careful in what I say. However, it almost seems to me that those who practise in the law have an arrogance towards those who do not. There is an assumption that jurors are poor bewildered souls who cannot be expected to understand the complexities of evidence and cannot be trusted to weigh the differing matter that is placed before them.
Let me give some examples of cases where the new provisions might have made a difference in terms of the admissibility of evidence. Two men were estimated to have stolen £140,000 from a number of victims by way of a scam at railway stations. One of them would put a suit carrier down next to another's luggage on the platform and the other would then remove both suit carrier and luggage. Both were identified and charged. One claimed that the clear CCTV evidence actually showed his wayward twin brother, while he was a sober businessman. The jury did not hear, as a result of his misleading claim to good character, of his previous 12 convictions for dishonesty.
In North Wales, a man was arrested for going equipped to steal in a hotel in Llandudno. He had in his possession thin strips of mica which, as I am sure your Lordships are aware, can be used for slipping room locks. The CPS discontinued the case as there was insufficient supporting evidence. Yet the man had 200 previous convictions for similar offences.
In West Mercia, someone with a series of previous convictions for burglary was found coming out of a house. He was acquitted in court, without the previous convictions being disclosed, on the basis of his rather strange explanation that he had gone into the house to look for his lost dog—a dog of which there was no trace.
As has been said, there are undoubtedly some who will argue that the Bill will be a charter to the police to round up the usual suspects. However, I believe that things have moved on since the bad old days. Much tighter rules are now in place and the police themselves are subject to far more internal checks and balances. Modern policing now applies transparent decision-making criteria and audit trails before charges are brought. Suspects have their rights safeguarded through the rules under the Police and Criminal Evidence Act. There is independent CPS scrutiny, and that is strengthened by the Bill.
Moreover, juries are by no means automatically pro-police evidence; indeed, they are often very questioning of what the police put before them. In any event, it will be for the jurors themselves to decide. It is rather patronising for people to assume that jurors will not be able to make up their own minds as to whether or not the similar fact evidence is relevant. It cannot be right—nor do the public at large believe that it is right—to ask a jury to reach a just decision on guilt or innocence when such a significant piece of information as the existence of one or more previous similar convictions is deliberately and permanently withheld from them.
There will also no doubt be much fuss about the proposals for trials without juries. Again, however, let us ensure that this is put in proportion. Why should it not be open to defendants to opt for a trial without a jury? They may feel that there has been so much pre-trial publicity that their interests will be better served without a jury, or alternatively that their public reputation for other matters—perhaps they appeared in the "Big Brother" house or some such—was such that a jury might be prejudiced against them.
Moreover, the proposals in Clause 43 to allow the prosecution to apply for a trial without a jury where there is a real and present danger of jury tampering have to be in the interests of justice. The Bill makes it clear that the conditions for that will make such cases rare and exceptional. However, the rareness and exceptional nature of the cases should not obscure the growing significance of this problem. I am told that the cost to the Metropolitan Police over the past two years for jury protection in nine full trials has been £9 million, equivalent to more than 26,600 police days a year diverted from mainstream policing in London. I might add that that significant cost has to be met by the Metropolitan Police with little or no notice and irrespective of which force or agency has had the lead in the investigation.
If the public are to have confidence in the criminal justice system, then the outcome of all trials has to be seen to be free from undue influence. Far from undermining a fundamental principle of the legal system, these proposals will protect its integrity. In addition, surely there should be some duty of care towards individual jurors. It is not right that they, and those closest to them, may be put at risk from the acts of a small but dangerous group of criminals in particular cases. Nor is it a means of ensuring a conviction by means of a jury-less trial. In practice, most cases where there is currently jury protection lead to a conviction. If anything is likely to be prejudicial, it is to be told as a juror that the case you are trying requires you to be physically protected from the defendants and their associates.
For similar reasons, the provisions in Clause 27 and Schedule 2 to provide for conditions to be placed on pre-charge bail are to be welcomed. The proposed arrangements can ensure that there is no attempt to intimidate or interfere with witnesses or evidence. However, it is important that the resource implications of enforcing such bail conditions are acknowledged, and it is not clear why in the Bill the power to impose such conditions is so limited. Surely in the interests of protecting communities from intimidation or persistent criminality, the power to impose pre-charge conditions should be available in all cases.
The Bill also contains a welcome provision on defence disclosure, which, again, is about creating a level playing field. It is about there being no surprises, and that must be sensible. It will reduce legal argument in the court and thereby reduce court costs. It will also allow accounts of events and alibis to be verified, with the possible consequence that cases can be ended earlier and in the defendant's favour.
The requirement under Clause 34 is similarly important. At present it is not uncommon for the defence to approach several expert witnesses but to use only the one who supports the defence offered. Why should the other, rejected expert testimony be kept from the jury? Why does that add to justice?
Clause 271 sets out minimum sentences for unauthorised use of firearms which are welcome. I sincerely hope that they will act as a deterrent to the routine carrying of firearms as a fashion accessory, the
risk of which is that a minor dispute or scuffle can quickly escalate into a serious incident in which a firearm is used.In a recent case an individual was shot by someone with whom he had had a minor dispute on a dance floor. The bullet killed the first victim, and, having passed through him, travelled through a partition wall and killed a second unrelated victim. If this clause proves an effective deterrent in reducing the number of people carrying firearms in public, such incidents will become less likely and public safety will be improved and lives saved.
Similarly, Clause 296 is also about saving lives by increasing potential penalties for those who cause death by drink driving, aggravated vehicle taking and dangerous driving. That is welcome and long overdue. People need to understand that a car can be just as lethal a weapon as a gun; it must only be driven responsibly, and with care. However, I regret that the opportunity has not been taken in the Bill to enforce a ban on the sale of imitation firearms, and anything that could reasonably be mistaken for a firearm.
Finally, I want to say a word about Clauses 7 and 8, which permit fingerprints and DNA samples to be taken from those arrested for a recordable offence. The technology now exists in all Metropolitan Police custody suites to allow fingerprints to be taken electronically with results being produced in minutes. These provisions will help to prevent mistakes of identity. They will prevent people from providing false identities in order subsequently to abscond. They will ensure that arrested persons who are wanted in connection with previous offences can be identified more quickly.
I fail to see why that can be against the public interest, or against the interests of justice. In terms of those subject to these procedures, the action of taking fingerprints and a DNA sample is minor. However, the potential benefits to the victims of crime and society generally in detecting crimes and protecting the general public from criminality are enormous.
The changes before us today will, I believe, go a long way towards improving public confidence in the criminal justice system. They will also do a considerable amount to ensure that victims and witnesses are presented with a system that is fair and just for them and where there is a genuinely level playing field between the rights of those accused and the often neglected rights of the victims of crime. I urge your Lordships to support the Bill.
6.2 p.m.
Lord Renton: My Lords, the noble Lord, Lord Harris of Haringey, has made an interesting speech of considerable detail, with much of which I agree. I am particularly glad that he mentioned that great care should be taken to protect jurors who sometimes are subject to being molested. Your Lordships have heard a very valuable speech from the noble and learned Lord, Lord Woolf, the Lord Chief Justice. It proves how valuable it is for members of the
higher judiciary to be Members of your Lordships' House. If steps were taken to stop that, which I happen to believe the Government may have in mind, that would have a bad effect on the constitution.About a third of my practice was in criminal law and sometimes I used to say to criminals that it is better to confess before being found out. I confess that I was called to the Bar just over 70 years ago. I have not practised for a number of years but I have always kept in touch. I had a varied practice, a third of which was criminal and I undertook a good deal of part-time judicial work as a recorder, indeed also as a relief judge at the Old Bailey. Throughout all those years when I did judicial work I was also a Member of another place, so no one imagined that there had to be separation of responsibility. Such matters can be combined and can be of advantage to each other.
The Lord Chancellor referred to the effect of the present system. The Bill consists of 374 pages, not to alter the law relating to offences to any great extent, but to deal with procedure, with sentencing and particularly with evidence. I do not want to detain your Lordships for long, although my view is that much of the Bill is acceptable and welcome, although some provisions, especially those dealing with evidence, are controversial and I must comment on them.
We must be careful to prevent previous offences, or other evidence of bad character, from being admitted except in very relevant circumstances. Surely previous convictions should be revealed only if they are truly similar to the offence for which the accused is being tried; for example, if the accused is being tried for fraud and it is a similar type of fraud for which he has already been convicted twice, I see no objection to the prosecution, at the discretion of the judge, revealing those two convictions. But if the accused has never been convicted for such an offence of fraud it would be contrary to a long-established principle of justice for a different kind of offence, or even a different kind of fraud, to be revealed.
I have to confess that I am totally opposed to hearsay evidence ever being used. My main reason is that hearsay is so easily fabricated not only by the defence, but also by the prosecution. When it is fabricated it may be impossible to challenge. Another reason against it is that the person whose hearsay evidence is quoted may never come before the court and may never be challenged under cross-examination. Do not let us allow hearsay to be admitted! I know that is a controversial view but it is one that I hold.
I shall refer briefly to several other controversial matters. In my opinion, the only circumstance in which trial without jury should be allowed, at the discretion of the trial judge, is in a very complicated fraud case that is likely to last more than, say, a fortnight. An ordinary jury may not be able to follow it well enough to reach a verdict. I remember a long-term fraud case many years ago that took place at Chelmsford Assizes in which I was defending. The jury
were utterly puzzled by the case. The judge did his best to clarify the matter but had to drop a hint to the jurors that he hoped that they would convict.In such a case I very much doubt whether justice is done by having an ordinary jury. We could have special juries. If all jurors in very long cases have their lives and livelihoods interrupted, members of a special jury may suffer even more than most members of common juries. In long, difficult fraud cases we have to consider carefully whether to allow the judge to try the matter on his own at his discretion. Therefore, I believe that the Government are right to propose that in very limited circumstances we can do without trial by jury.
As to permitting retrials, I am very doubtful. That could lead to the prosecution starting a trial without enough evidence and if the accused is acquitted they could try harder and search for more and better evidence. I do not think that that is the way to achieve justice. That is not the way for the prosecution to function.
In conclusion, the Bill is a valiant attempt to improve our administration of criminal justice. Much of it—in fact, most of it—does so; but we must fully scrutinise those controversial parts of the Bill which might sometimes cause injustice.
6.10 p.m.
The Lord Bishop of Blackburn: My Lords, I first share from these Benches in the congratulations being offered to the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, on their recent appointment.
I welcome the publication of the Bill, although I too have some reservations. The Bill is about punishments, a crucial matter for our society. Indeed, as a Bishop concerned for much of my ministry with education of the young, the issue of discipline, and ensuring that pupils achieved the highest standards, it is of great concern to me. I raise this issue because it goes to the heart of the Bill, and I echo the wise words of David Faulkner who was for a while a senior civil servant in the Home Office. In his recent book Crime, State and Citizen, he wrote that in school, at home, at work and in the criminal justice system there is both discipline and punishment.
Not all punishment involves suffering. In recent years, the criminal justice system has widened to include anti-social behaviour orders, drug abstinence orders, rehabilitation orders and much else. Not all of these involve punishment in the sense of causing suffering. They are instead sanctions that society has decided to make available through Parliament and the courts to enforce standards of behaviour that it thinks desirable. I applaud this. There is a crying need to try to prevent disorderly behaviour, drug taking and other anti-social behaviour.
My concern is that there seems to be an increasing political assumption, first, that wrongdoing must be visited by punishment and, secondly, that such punishment must on that account cause suffering to the offender. There are several difficulties with this.
The welcome emphasis on drug rehabilitation—such as that which I have personally witnessed in the THOMAS project in Blackburn, run by a gifted Roman Catholic priest but funded by the Government—depends on offenders' co-operation and goodwill in dealing with drugs, alcohol and improving their education. However, if such programmes are seen as part of punishment and are imposed with an emphasis on coercion with strong sanctions for non-compliance, there will be difficulties. Such problems will increase if the programmes are delivered by agencies that enter into partnership with the criminal justice system but are not committed to punishment.The Bill contains many interesting provisions, such as those for so-called juveniles, making parenting orders available at an earlier stage. It also allows suspects to be tested for specified class A drugs, making a presumption against bail for anyone who tests positive but refuses to undergo assessment. However, in a submission to a briefing in the House of Lords on 22nd May, the Children's Society pointed out that random use of class A drugs for juveniles is sadly not uncommon, but that this will very rarely lead into long-term dependence on class A drugs. Only 3 per cent of children who try such drugs become addicted. Yet the Bill makes provision for compulsory drug testing for juveniles at the time of charging; at the pre-sentence stage; and during the serving of community orders. There are already youth offending teams which can assess juveniles for the use of drugs. It is this use of compulsion and coercion that I find so difficult.
A second concern also related to juveniles. Section 53 of the Children and Young Persons Act 1933 allows for indeterminate life sentences. This provision has rarely been used, and in most trials, case law has argued that only where assessment is impossible should this section be used and an indeterminate sentence be imposed for a juvenile. But the Bill allows for indeterminate sentences for sexual and violent offences. Our concern must be that juveniles on such sentences may well lose all hope. The 1991 Act expressed very clearly that the sentence needed to express just desserts and be related proportionately to the offence, rightly distinguishing between the offender and the offence. The offence was punished; some sort of atonement was achieved; and the offender could move on. In the Christian tradition, this has been expressed as hating the sin, not the sinner. The danger is that the Bill moves more towards indeterminate sentences, which are very hard to administer equitably, and to mandatory sentences that ignore mitigating factors.
I echo the words of the Select Committee on Home Affairs in its report of 4th December 2002 on the Bill. It said:
- "There is much in the Bill that we support, including the provision to assist witnesses in giving their evidence . . . the transfer of responsibility for charging to the Crown Prosecution Service . . . and the new sentencing provisions".
I share the concerns of the Select Committee on Home Affairs that the provisions on admitting evidence of bad character and past convictions—subjects referred to by other noble Lords—will influence sentencing procedures and outcomes. I, and many others, cannot see how the Government's wish to reduce the numbers in prison and so relieve the undoubted pressure on our prisons can be achieved without the determination to develop forms of punishment other than imprisonment. I beg the Government to resist the pressure, every time that a serious crime which rightly outrages society is reported in the media, to respond simplistically by authorising increased prison sentences. Overcrowded prisons may be an attempt to punish—although without linking prisoners with their offences, that is questionable. Certainly, overcrowded prisons do not easily rehabilitate the offender. What we need is perhaps a fundamental re-examination of the meaning, purpose and methods of punishment. I suggest that this part of the Bill be recast in a less coercive direction.
We on these Benches share the concern of many noble and learned Lords about the provisions on trial by jury and the making known of previous convictions, and we shall watch closely the progress of these provisions at Committee stage.
Nevertheless, this is a Bill which I believe could improve the relationship between probation, prison and courts services. We need to get the balance right. Much will depend on the resources available to give effect to the Bill—not only staff, buildings and money, the usual things, but leadership, energy, integrity and commitment. Even more will depend on whether its provisions are applied in a spirit of compassion and reconciliation, where that is possible, rather than by rigid enforcement, punishment, repression and social exclusion.
6.18 p.m.
Baroness Linklater of Butterstone: My Lords, elements of the Bill are to be welcomed, particularly the attempt to construct a rational and creative sentencing framework so that the courts can make disposals that are more relevant both to the offence and to the offender. However, other elements are not so welcome. The Bill states that its aims are to,
- "rebalance the criminal justice system in favour of the victim and the community so as to reduce crime and bring more offenders to justice".
We are also taking a hard look at the quality, resourcing and reasons for what works and what does not work in the existing provision of community penalties through a newly established, independent commission of inquiry chaired by Lord Coulsfield which will report in June next year. I am looking forward to discussing this in the near future with the noble Baroness, Lady Scotland of Asthal, who I am delighted to see in her place. She is indeed a very beautiful buffer.
It is absolutely right that the needs and rights of victims should be given the attention and place they deserve. It is also right that the community's needs are taken into account, that more criminals are caught and convicted and that, in the process, everyone is better protected. I believe, however, that this has more to do with making people face up to their crimes and their consequences, doing so publicly and visibly, making reparation and apologising so that victims have a sense of real justice being done, rather than the offender simply disappearing into the black hole of prison. But it is in this process of rebalancing that we risk some very undesirable outcomes.
Despite the welcome proposals that an offence should be,
- "so serious that neither a fine alone nor a community sentence can be justified for the offence",
- "custodial sentences must be for the shortest term . . . commensurate with the seriousness of the offence"
By increasing magistrates' courts sentencing powers from six to 12 months, the wider use of custody is almost inevitable, and particularly the widely discredited short prison sentence. Increased use of custody is also likely in the ways in which the four new sentences of the generic community order, custody plus, intermittent custody and custody minus may be applied. Despite the fact that they are indeed creative, more flexible and, as such, very welcome, the risks are that so-called "sanction stacking" of the 12 elements of the generic community service order in all these new sentences will greatly increase the risk of breach, while also allowing less leeway for the choice of appropriate, constructive penalties before an offender risks custody.
There must be clarity and safeguards in the application of these sentences if we are not to find, faute de mieux, ever greater numbers of offenders ending up in custody, with breach being the greatest of these risks. Can the Minister give undertakings on this?
Although I am well aware of the reservations there are on the complexity and cost of administering intermittent custody, the potential benefits are so positive, particularly for women and in terms of making penalties constructive rather than purely punitive, that they have my full support.
However, the overarching worry about all these proposals is that they are crucially dependent for their effectiveness on the resources made available in the community to put them into effect. This means an enormous increase in money and manpower to both the magistracy and the probation service. The magistracy is currently 1,500 under strength, according to the estimable Rachel Lipscomb, chairman of the Magistrates' Association. She predicts that another 3,000 magistrates will be needed on top of the shortfall to meet the demands of the extra work that the new powers will put on them. This is a difficult and costly task of both recruitment and training that will take a long time to realise. Equally, the probation service is under enormous strain to deliver the service currently expected of it. The funding allocated in the last spending review is expected to deliver a further 1,100 fully trained officers, a process that takes two years. But 500 of these are needed to maintain the service at its current levels. Meanwhile, it has been calculated that the Bill as a whole will lead to a 30 per cent increase in the workload. This means that there is no way that it will be in a position to meet the requirements of the Bill for over two years, even with pilot schemes and phased implementation.
There are ingenious plans to introduce a new, lower grade of officer at NVQ level 3 to outsource some of the work to the voluntary sector and to the private sector and even to bring retired officers back into the fray. I know that discussions are taking place between the probation and prison services to ensure what they call "end-to-end delivery". But we need assurances from the Minister that there is no question of the implementation of those parts of the Bill which involve both the magistracy and the community-based services until the necessary money and manpower are in place for both services to implement them properly; otherwise, it is a nonsense.
The Government might also consider another fundamental rebalancing exercise. This is the planned spending increase for next year for prison places, which is enormously in excess of that planned for the probation service. The Home Office resource budget plan for 2003–04 shows an allocation to the Prison Service of almost four times that allocated to the probation service. This hardly encourages one to believe that the Government are as enthusiastic about supporting community-based penalties as they say they are. What it shows is that they are actually
planning for the prison population to rise further, something we had all hoped to see contained, at the very least, by the new framework.This House does not need reminding that currently we have a prison population bursting at the seams. A new all-time high was announced last Friday. It leaves the Prison Service unable to deliver the sort of outcomes it could and should be able to deliver, and puts this country at the top of the league of imprisonment in Europe, which should make us hang our heads in shame. Yet while we are debating this Bill, to make provision for a sentencing framework which includes rehabilitation, reparation and restoration in the community at its centre, adequate resources for its proper implementation are not in place, only future promises. The Government are simultaneously planning for the very increased use of imprisonment they claim they do not wish to encourage. This is an Alice in Wonderland world. If the Government rebalanced, by reversing their spending priorities, perhaps the community penalties would have a chance of becoming an effective reality, the aspirations of the Bill could be realised and coherence, consistency and confidence, which were the theme of the Home Secretary, might then be able to grow.
Finally, I must flag up, once again, my deep concerns about the way we treat children who offend in this country, for the tentacles of this Bill are reaching down to children. We are increasingly incarcerating children in England and Wales to the extent that our practices have been seriously criticised for violating Article 37(b) of the UN Convention on the Rights of the Child. Currently there are approximately 3,000 children under 18 in custody, of whom over 530 are 15 and under. About half of these are in local authority secure units and the rest are in secure training centres or prison. I have never doubted the need for some children to be in secure accommodation, but these numbers are creeping up steadily, and now this Bill has two measures which further increase the courts' powers to detain children under 18. The first, as we have heard, is detention for public protection for a specified sexual or violent offence, which is indeterminate. In a Parliamentary Question the Government said that about 30 children a year would receive such a detention for life. The other is in connection with the new mandatory sentences for murder which in the case of offenders under 18—the suggested starting point—is 15 years. The Home Secretary, I am glad to say, undertook to look again at these provisions, but I feel—this is what I want to flag up—that when we find ourselves even articulating the idea of such sanctions for children in the context of mandatory life sentences for murder we really must stand back and ask ourselves about what we are saying or doing. However passionate the Home Secretary and others are to bring offenders to book and crack down on them, where children are
concerned that must be tempered by understanding, compassion and a humanity which allows for the possibility of such notions as redemption and even mercy and forgiveness. Otherwise, the words,
- "Lord forgive them for they know not what they do",
This Bill does have much to commend it. But not until its flaws have been addressed and eradicated and the resources needed to implement it fully and properly are firmly in place and not until we have honed a framework for criminal justice in this country in which we can truly say we have confidence and pride should it be allowed to reach the statute book.
6.31 p.m.
Lord Ackner: My Lords, I shall deal only with sentencing. In a situation that is fraught with actual and potential disharmony, it is often wise to identify at least what can be called common ground or what is hardly likely to be disputed. It is of course for Parliament to set the framework. That involves settling the maximum but leaving the judges to determine the sentence that fits the particular facts of the crime.
Here comes the first note of harmony. It was fully recognised by the Home Office, but in 1990—those halcyon days when the prison population was only a little more than half its current figure. In a White Paper entitled, Criminal Justice and Protecting the Public—I stress those last three words—the Home Office said in paragraph 2.16:
- "it is not the Government's intention that Parliament should burden the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum mandatory sentences in certain offences"—
- "This would make it more difficult to sentence justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free unjustly as a result".
Let me develop the final proposition in that quotation; that is, that:
- "It could result in more acquittals by juries, with more guilty men and women going free unjustly as a result",
First, there will be occasions when juries are aware, as they could be, that the defendant faces a mandatory sentence if convicted. They will for that reason not convict. Secondly, there will be refusals by defendants to enter, as they should, pleas of guilty. In some such cases—because of the heavy onus of proof—there will be acquittals. Thirdly, there will be cases where witnesses, particularly those in close relationship with
the defendant and who know the consequences of a conviction, will refuse to give evidence or prove to be unreliable witnesses. Fourthly, there could be cases, as has been pointed out by the senior judiciary and politicians, of victims being killed in order to avoid the risk of detection and subsequent life imprisonment. Finally, in order to be sure of obtaining a conviction, there will be cases where the prosecution will find themselves obliged to accept an unrealistic plea bargain, as is well known to be the case in America.I turn to the terms of the Bill. This House has said more than once that a politician, such as the Home Secretary or a junior Minister, has no part to play in the judicial process of sentencing and accordingly should have no power to fix the minimum—or, indeed, any—period which the offender must spend in prison.
The Human Rights Act 1998, which this Government enthusiastically passed, incorporated the European Convention on Human Rights into English law. Article 6 of that convention guarantees litigants an independent and impartial appeal. It is of course common ground that the rule of law obliges the English courts to apply the provisions of the Human Rights Act.
Recently, the House of Lords Appellate Committee, applying the European legislation, decided that the Home Secretary, in seeking to play a decisive role in fixing the period that those convicted of murder must stay in prison, was acting unlawfully. The subsequent decision was the last straw so far as the Home Secretary was concerned. It concerned immigration law and again relied on the Court of Human Rights legislation to establish that what the Home Secretary was proposing was unlawful. The Home Secretary's reaction was that of anger and frustration because he was being deprived of a power.
At that point in time, the Criminal Justice Bill, which is now before us, was going through another place. In Committee, there were discussions on Clause 160, which is entitled, "The Sentencing Guidelines Council", which, subject always to the residual judicial discretion, stipulates the appropriate range of sentences for particular crimes. However, on Report, the Home Secretary suddenly introduced a series of mandatory starting minimum sentences in relation to the automatic mandatory life sentence for murder. Some have categorised Schedule 17, which contains these mandatory starting minimum sentences, as "Blunkett's revenge". They are, as was recently pointed out by the noble Lord, Lord Windlesham, a process of sentencing by ministerial decree.
There are currently existing guidelines recommending but not imposing minimum sentences for murder, which were issued, as we heard, by the Lord Chief Justice last year after agreeing them with the Sentencing Advisory Panel and, as I understood from his speech, with the approval of the Minister. There has never been any suggestion that the Lord Chief Justice's recommendations, which are on average about 50 per cent below those of the Home Secretary, were inadequate in any way, nor have there been any suggestions that those guidelines are being applied inconsistently.
Indeed, the noble Lord, Lord Filkin, in answer to a written Parliamentary Question as to how many life sentence prisoners had been imprisoned for longer than their judicial tariff, provided the following figures
- "An analysis of 1,257 tariffs in new cases between 1st April 1997 and 30th June 2002, indicated that 87 per cent of those were set in line with judicial recommendation. Of the remainder, the Secretary of State set a tariff higher than the judicial recommendations in 6 per cent of the cases, and a lower tariff in 7 per cent of the cases".—[Official Report, 19/2/03; col. WA 173.]
These figures clearly suggest that the Home Secretary considered the vast majority of tariffs to be adequate, clear and consistent.
The Home Secretary is now publicly maintaining that the judiciary are under-sentencing, and, in my view, he is acting in a grossly misleading fashion. He well knows that in proportion to its population, the United Kingdom has the highest prison population and imposes longer sentences than any other country in the European Union. He also knows that the number of lifers in England and Wales—4,800 in 2001—is equal to the whole of the European Union.
His new proposals could result in a 50 per cent increase in the lifer population. Most lifers now spend between eight and 14 years in prison, and if the starting point for lifers was increased to 15 years it could double the lifer population within a few years.
Mr Blunkett's figures impact not only on murder cases with a mandatory life sentence, but on other serious cases that must be kept in line so that the pattern of sentencing is consistent. Otherwise, public confidence will suffer.
He well knows that the overwhelming majority of murders are committed within families, kinship or friendship groups, and the perpetrators are unlikely to re-offend.
The crime of murder can be committed in such a wide variety of circumstances that it often presents a very difficult sentencing exercise. In Reyes v R, a judgment of the Judicial Committee of the Privy Council given on 11th March 2002, the Privy Council stated
- "It has however been recognised for very many years that the crime of murder embraces a range of offences of widely varying degrees of criminal culpability. It covers at one extreme the sadistic murder of a child for purposes of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other, the mercy killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat".
The Secretary of State contends that the public are deeply unhappy at the sentencing of very serious crimes. But he knows well, but conveniently overlooks, the gap that exists between reality and perception.
I refer, but only briefly because of time constraints, to the report of the British Crime Survey 2001.
- "The BCS has demonstrated equally clearly, however, that at least in part, public dissatisfaction is grounded in ignorance of current practice, and in ignorance of current crime trends. Those who were most dissatisfied were most likely to overestimate the growth in crime and the degree to which crime is violent, underestimate the courts' use of imprisonment and underestimate the clear-up rate."
- "Out of every 100 men aged 21 or over who are convicted of rape (mugging/house burglary), how many do you think are sent to prison?"
The respondents overestimated not in rape, but in mugging by five per cent, and in burglary by eight per cent. They underestimated to a small degree in 26 per cent of rape cases, in 20 per cent of muggings and in 15 per cent of burglaries. In large underestimates, 57 per cent underestimated for rape, 62 per cent underestimated for mugging, and 55 per cent underestimated for burglary.
It is, I fear, an ironic situation that the Home Secretary should, as a result of the Cabinet reshuffle, be in a position to have in the Home Office, in due course at least, the major constituents of a ministry of justice.
There has passed to the Home Secretary, not to my noble and learned friend the Lord Chancellor when he becomes the Minister for Constitutional Affairs, a far greater say in matters concerning the administration of justice. It is a worrying situation, that as and when our present Lord Chancellor leaves what is meant to be a temporary office, the prospect of justice being maintained will be significantly reduced.
6.48 p.m.
Lord Brennan: My Lords, the mark of a civilised society is the quality of its criminal justice system. Where, as we do now, we face a Criminal Justice Bill enormous in scope, it is our legislative duty to ensure that it meets the standards of a civilised society.
A couple of centuries ago, Edmund Burke pointed out that it is not for lawyers to make law, it should be based on the concepts of humanity, reason and justice. In examining the contents of this Bill, I doubt if any of us would disagree with those three benchmarks to determine its quality.
In the course of this Bill, I want to congratulate my noble and learned friend the Lord Chancellor and my noble friend Lady Scotland, friends both personally and legislatively. I thank my noble and learned friend for declining to continue in this Bill, as he might well have done, and I thank my noble friend for accepting what we call in our profession "a late return" of 14 chapters and 32 schedules with the aplomb to which we are accustomed. But she will appreciate that at this stage it is not fruitful to the House to spend time on the excellent parts of the Bill which we should welcome. It is an opportunity to identify those parts that cause us real concern.
It would be a particularly uninquiring mind that found itself in complete accord with 306 different clauses of a Bill of this size. Therefore, I hope that critical commentary will not be misunderstood. It is designed to improve this important legislation.
I do not regard the Bill as a party-political matter. There are differences of opinion within society as well as within the law about many of its provisions. I, for example, accept the justice of a variation of the double-jeopardy rule to accommodate the advance of modern science and to ensure that the guilty—and often the
dangerously guilty—are finally convicted if the evidence supports it. I particularly welcome the strengthening of bail controls. It is infuriating in ordinary society to see those on bail regularly committing further offences and receiving no consequentially hard penalty during the time of their bail.However, I want to raise a cautious welcome, an expression of concern and, finally, a strong objection. First, the cautious welcome. Sentencing occupies a large part of the Bill. Sentencing and the criminal law and its procedural side finds itself uncomfortably placed in government between the beginning of the criminal justice process—policing—and the end—punishment. Those two extremes of the spectrum—policing and prisons—are the most expensive and the most difficult within which to legislate. Therefore, they are often the ones which governments tend to neglect in favour of the temptation to change criminal procedure and law. It is easier and less expensive and it is a temptation to which all governments in the past 20 years have annually given in. We have had a criminal justice Bill for almost every year of the past two decades.
This Criminal Justice Bill is different. The sentencing proposals are positive and I have three points to make about them. First, I request that if it is not in the Bill by way of ministerial commitment, the Government should carry out a results-based analysis of these new sentencing arrangements, annually or whatever is convenient. Secondly, they should estimate for us now the effect of the Bill upon the prison population. It is now more than 70,000. Prior to the Bill bring brought before Parliament, the estimate was that within five or six years it will rise to 100,000. What will this Bill do to that prison population? It is no satisfaction to victims to see a prison system in operation that serves no useful purpose in the rehabilitation of criminals.
My third point relates to the sentencing and guidelines council. For the moment I have an open mind about this for two reasons—one of principle and one of practice. While fully acknowledging the experience of the judiciary in sentencing, I do not see any principled reason why lay people should not be part of a sentencing guidelines council—provided, in principle, that they are not there to lobby for the Government or other sectoral interests, but are there as fair and objective-minded people to establish fair sentencing. The practical point is a very practical one. With such a guideline council, it would surely be extremely difficult for governments to assault us year after year with different criminal justice Bills about sentencing.
I wonder whether the noble and learned Lord, Lord Woolf, the Lord Chief Justice, and his colleagues have taken that fully into consideration in their analysis of the council. For the moment, I have an open mind about it and therefore give sentencing a cautious welcome.
I turn to a serious concern; Part 11 of the Bill dealing with evidence. To call, as do the Explanatory Notes, for a new and inclusive approach to the evidence to be put to a jury gives me very great concern. Inclusive? It is not a legal concept of which I have ever heard. It is a piece of modern jargon which is ill-suited to the clarity with which we expect the criminal justice system to operate.
Let me ask two rhetorical questions. Supposing in a trial a juror personally concludes that the evidence does not satisfy him of guilt beyond reasonable doubt and what swings him in favour of a guilty verdict is the fact of a previous conviction. I know of no system of logic or fairness of justice to victims that can make that either fair or logically appropriate. I make exactly the same rhetorical question about hearsay. Multiple hearsay must inherently be multiply unreliable the further down the chain one goes.
The combination of a previous conviction, or convictions, and hearsay could be the factor that causes a miscarriage of justice. Victims must be given every consideration, but so must justice. I remind the House that it was only in 1994 that a Royal Commission on criminal justice, created because of a major problem with miscarriages of justice, made more than 350 recommendations to improve our system. If we look back on its report, I wonder whether we would find that Part 11 of the Bill easily sits in the context of avoiding miscarriages of justice. It is no satisfaction to the man or woman wrongly imprisoned to be told that it was all the result of an inclusive process. I therefore have great concern about Part 11. Reform the law, yes, but within reason and justice.
Finally, I pose a real objection. In this country we have, it is said—and I believe it to be so—a participatory democracy. Other than voting and paying our taxes, the only occasion on which we as citizens participate in the democracy is as a jury. If for centuries past we have employed the system, we should remind ourselves of why we have done it. First, citizens are doing justice as jurors. Secondly, they command the confidence of their fellow citizens. Thirdly, they are independent of the state. Fourthly, in my experience, as 12 good people and true they seek to exercise in a fair way their community common sense.
What is wrong with this system? Why should a person charged with serious fraud be told that if he wishes he can be tried by a judge? Why? I know of no reason of principle. It must be one of convenience. Any reasonable citizen going into a fraud trial these days would wonder what on earth was going on. The courtroom would be in a deluge of documentation. The indictment would probably run into 10, 15 or 20 counts. The simple would be made to seem complicated and the complicated incomprehensible. It is not the criminal law which is wrong, it is the system of conducting fraud trials which is wrong.
Why can we not give the financial services regulatory agency the same form of draconian powers that exist in the United States to deal with serious fraud? People within the world of finance are regulating those who do wrong within the world of
finance. Why should we undermine a major constitutional aspect of our country—jury trial—because of the inconvenience of serious fraud? I completely reject it. I know of no evidence that juries do not comprehend and if there is difficulty, it can be overcome to a large measure by having a simple offence of fraud based on dishonesty.Secondly, why should a jury which has been the subject of an attempt at interference not continue as a jury? In the United States of America, which has a much more gun-ridden society than ours with much more violent crime and a much greater sophistication of organised crime, they have not abolished jury trial because of the risk to jurors from such criminals. They proclaim the value of this principle to be above and beyond the machinations of any such criminals. We should do the same. There is no evidence of which I am aware to show that this is such a serious problem as to require any reduction in the right to trial by jury.
Last of all, I refer to election by a defendant to be tried by a judge. I find this particularly unacceptable. Let me give two practical problems. Supposing somebody charged with the gravest of paedophilia offences chooses to be tried by a judge and is acquitted. What then of the national press's reaction to such a finding? What then of the independence of the judiciary? Supposing an alleged fraudster elects trial by a judge and there are millions involved in the pension fund and he is acquitted. What then serves the public? These are real questions of democratic import. In none of these areas does the right for trial by jury for serious criminal offences justify any derogation.
This country of ours exists on some very important traditions—traditions that bear the test of time. If you asked any citizen of this country which is one of those great traditions, I have no doubt the answer would be the jury trial. I strongly object to any reduction—as I have done before in this House—and ask the Government very carefully to consider this particular proposal.
This Bill is not the occasion, either within this House or without, for populist rhetoric. We have the advantage of two experienced and impressive Government Ministers conducting it before us. It is not a lawyers' payday. This is democracy in action. If we left this Chamber and talked to ordinary folk about what we do, I assure you that the criminal justice system is one of the few things they would understand and have an opinion about and in relation to which they expect us to protect them democratically. The criminal justice system is theirs, not ours. This Criminal Justice Bill has a great deal to commend it and in the days ahead, with the watchwords of "justice, reason and humanity", I hope we will produce a Bill that does obtain the confidence of the public.
7.4 p.m.
Lord Windlesham: My Lords, like others I should like to put on record my congratulations to the noble and learned Lord, Lord Falconer, on his appointment and to do so in a spirit of all-party amity. I extend that also to the noble Baroness, Lady Scotland, whose
work we have admired and which she has done so conscientiously for many years. Her promotion is well deserved and we congratulate her on that.These tributes are not just a display of all-party amity, there is a more serious point behind them. I believe there is going to be an opportunity for the two Ministers just named to exercise a counterweight to the Home Secretary's influence. I do not wish to upset them by saying it is a malign influence, but influence it is on the process of justice. As regards Mr Blunkett's personality and his personal beliefs, he has strong individual powers of initiative, without consulting his colleagues, often without leaving time to do so. His influence is powerful and is not always in sympathy with values which are prevailing in this House, including, I believe, among some Ministers in this House itself.
In my own remarks I shall be brief. This is mainly because I shall be unable to attend the subsequent stages of the Bill owing to absence abroad. I will confine myself to one topic only and it is an important one. It is the essential role of victims and witnesses of crime in the criminal process.
Sometimes, but not always, the victim will be the principal witness, who typically may need help and support in the unfamiliar and formal—to many people forbidding—setting of a criminal trial. At other times, other witnesses will be third parties—nervous, ill at ease and reluctant sometimes to come forward to give the evidence which is crucial to a trial in the conventional, adversarial sense. Until Victim Support initiated the witness service in the Crown Court just on two decades ago, there was often nowhere separate for witnesses to sit and wait for the trial to begin, and no one to explain to them what was going on. All that has now changed, and this Bill contains a number of further significant improvements in the provision for victims and witnesses in all criminal courts. These are both welcome and timely.
They include the use of live video links in criminal proceedings so that witnesses can give evidence at a separate location where that it is necessary. There are further provisions to protect a witness from unfair challenges on their credibility as a witness. In cases where a witness might find it difficult to attend the court, there will be more provision for evidence to be given by video recording or in written statements. All of these changes will continue the important process of easing the position of certain witnesses in the court process.
Perhaps I may make a brief personal reference. I was the national president of Victim Support for nine years in the late 1990s until 2001. I was therefore personally involved in the early years of the establishment of the witness service in this country—partly as a result of having seen the provision made for victims at one of the early experiments in a criminal court at Brooklyn in the United States.
A generous funder, in the shape of a newly established charity looking for a good cause—that one golden opportunity that comes up every so often—made it possible for Victim Support to fund the early
stages of setting up a new, and subsequently very large, charitable organisation. Some Home Office officials at the time were interested. The enthusiastic personal support of the then Lord Chief Justice, Lord Taylor of Gosforth, was invaluable, because it was he who ensured that victim and witness services could be established and given some house room in the Crown Courts.One of our earliest Victim Support meetings took place in the Crown Court in Newcastle, with Lord Taylor, sadly, then very near the end of his life through ill health, presiding. By doing so he wanted to ensure that the service got off on the right foot. I see the current Lord Chief Justice nodding in assent. He may have been a High Court judge at the time. I was also present, and a tribute to Lord Taylor is well deserved.
From those small beginnings and under the inspirational leadership of Dame Helen Reeves, Victim Support has grown into a large national service, operating in every criminal court, including the huge undertaking of the magistrates' courts, to provide a service to witnesses. I learnt only this week that the Armed Forces have arranged for Victim Support to run witness services in the courts martial. Currently, there are about 4,000 trained volunteers working in the witness service.
I know that the noble and learned Lord, Lord Falconer, recognises those achievements. He is currently in discussion over Victim Support's great concern regarding the Government's current intention to devolve funding for victim and witness services to local criminal justice boards.
Noble Lords who have served in government, as I have, know that, inconveniently, it sometimes happens that good intentions are stated on public platforms but, on returning to the office, it is found that an aspect of policy, often involving money, appears to point in the opposite direction. We must hope that the noble and learned Lord, Lord Falconer, or his successors and Dame Helen Reeves will be able to reach an accommodation, because what is presently proposed will threaten the continued service of Victim Support in the criminal courts, which would be an undeserved disaster.
This is not the moment to pursue the issue further, but the noble Baroness, Lady Scotland, will have heard what I said. I believe that Dame Helen had been due to see the noble and learned Lord, Lord Falconer, again shortly. She may well fetch up seeing the noble Baroness instead. I am confident that she will find a sympathetic ear and, I hope, a willingness to reconsider policy.
The Bill makes many references to the interests of victims and other interested parties, but they must be viewed in the context of delivery. It is the delivery of the service that matters, not the statement of good intent or good wishes. So I shall leave what is a serious issue—not simply one of funding, but of how volunteers can advance the interests of inarticulate people on their behalf in the courts—in the capable hands of the noble Baroness, Lady Scotland.
7.15 p.m.
Lord Donaldson of Lymington: My Lords, in an intervention previous to the debate, I described the Bill as monstrous. That was of course a slip of the tongue—although possibly a Freudian one. I meant to say that it was a truly monumental Bill, which it certainly is. Anyone who set out to comment on every part would be deservedly unpopular. I should like to say a word only about Part 7, concerning trials on indictment without a jury, Part 10, concerning retrial for serious offences and Part 12 concerning sentencing.
The use of jury trials for serious offences is traditional in this country and is no doubt accepted by the public as the natural order of things. It also has the real advantage of appearing actively to involve the population as a whole in the administration of justice. That relatively large sections of the public are excused jury service may not be widely appreciated. So long as the public perceive themselves as being involved, there is less risk of a "them and us" attitude developing.
It is sometimes said that the jury system provides a democratic safety valve, in that perverse verdicts can send a message to government. That is much overstated. Perverse verdicts in the case of food rationing offences and of drunk driving were the order of the day at one time. The attitude of jurymen was: if they were not doing it, their friends certainly were. That was why there were few convictions.
The Government indeed got the message, and changed the law, so that breach of food rationing regulations became an offence that could only be tried summarily and, on drink driving, they introduced the breathalyser offence, which, again, got rid of juries. In more recent times, attacks on nuclear submarines and GM crops have produced manifestly perverse verdicts, but no change in policy.
There is no evidence that juries get it right more often than other tribunals. On the basis of my experience, I have never known a jury to convict in circumstances in which, on the evidence before them, I had or have any doubts about the correctness of its verdict. I make no secret of the fact that that includes the Guildford and Woolwich bombings and the Maguire case, which I tried. That the convictions were subsequently quashed on the basis of matters of which the jury was ignorant is nothing to the point.
On the other hand, I have known a number of cases in which I was astonished that the jury should have acquitted. In one, they acquitted a man accused of arson in a factory. After the verdict was given, I was told by the police that that was his sixth consecutive acquittal. His luck ran out to some extent on the next occasion. He was convicted, but, unfortunately, an inexperienced probation officer told the court that it was his first offence, rather than that he had no previous convictions. As a result, he was given probation. I am bound to say that I rang up the chief probation officer to say, "For God's sake, do not let that man get anywhere near a factory". I hope that that was done.
Anyway, against that background, I really cannot get unduly excited at the proposal that if the nature of the case is such that trying it would impose an undue burden on the jury, or that its complexity is such that there may be a risk that the jury will wrongly acquit or wrongly convict, the trial shall be by a judge alone. Still less can I feel that all our liberties are at stake if, faced with evidence of jury tampering, a judge decides to try the case without a jury—subject, of course, in all those cases, to an overriding need to ensure in the exercise of the judge's discretion that the decision does not conflict with the interests of justice. I should add that my suggestion for the arsonist was that a new offence of being accident prone should be introduced. It was turned down by the authorities.
I turn to Part 10, "Retrial for serious offences". I accept that a verdict of not guilty should no longer be an absolute bar to a second trial in a very few serious cases. I have in mind the DNA cases—although not all DNA cases—but there may be other categories. I also have it well in mind that it may be impossible to achieve a fair retrial in some high-profile cases, in particular where the tabloid press has muddied the waters. However, the substitution of a verdict of guilty for a previous verdict of not guilty should be the sole prerogative of the jury and not something which depends even peripherally in part on a verdict by the Court of Appeal.
Paragraphs (a) and (c) of Clause 73(3) are intended to ensure that the Court of Appeal allows an application for a retrial only where the DPP consents to the application and—I stress this—as the Home Office briefing to Opposition Peers puts it,
- "evidence emerges which strongly indicates that there is a cast iron case against an acquitted person for the offence for which he was acquitted".
In order to avoid this highly prejudicial approach, in my judgment, Clause 72(3)(a) should read, "a jury could"—I stress the word—"regard the evidence as reliable", while paragraph (c) should read,
- "in the context of the outstanding issues",
- "highly probative of the case against the acquitted person".
Consistent with my contention that the not guilty verdict should stand unless or until it is superseded by a verdict of guilty by the new jury, I have to ask why the Court of Appeal is expected to quash an acquittal ordered in proceedings in England and Wales, yet can content itself with declaring that an acquittal elsewhere in the United Kingdom is not a bar to a retrial. The whole object of the application in both cases is to displace the bar on a retrial. If that can be achieved by a simple declaration, why should it not be left to the jury to quash the original not guilty verdict if the retrial ends in conviction?
Lastly, I turn to Part 12, "Sentencing". Detailed criticisms have been made and will hereafter be advanced by others. Today we have had the privilege of hearing from my noble and learned friend the Lord Chief Justice. We shall be able to read his more detailed criticisms in the Library. My concern is with what I conceive to be a total misunderstanding by the Government generally and the Home Secretary in particular of what is the place of the judiciary in our unwritten constitution.
In theory, there should be a separation of powers between the executive, the legislature and the judiciary. At present, such is the majority of the governing party in another place that there is no real separation of powers between the executive and the legislature. That makes it all the more important that we maintain the separation between the judiciary and the executive. For in present circumstances it is only the judiciary which can stand up and be counted in defence of the rights of individual citizens.
In times gone by, Parliament fixed the maximum sentence for any given offence. In deciding upon the appropriate sentences, the judges looked at all the circumstances of the particular offence, and looked at all the circumstances of the particular offender. They then decided where that all came on the scale between the virtually excusable version of the offence and the worst possible offence, which Parliament must have had in mind when it fixed the maximum penalty. It was not an easy exercise, but it was very straightforward.
However, this Bill devotes 150 clauses and a whole schedule to telling judges how to perform that task. I must ask why. The answer is plain. The Home Secretary thinks that Parliament is omnipotent and can dictate to the judges, in detail, how they should perform their constitutional duties. Indeed, in the context of mandatory life sentences, Schedule 17 assumes that the judges are mere bean counters: think of a starting point for the minimum time which the accused should stay in prison, and then add or subtract in accordance with what are virtually statutory formulae.
Parliament can limit the powers of the judges. Sometimes it does so, while judges and others think that they should have the freedom to impose longer sentences. But it can exercise its power and I have no problem with that. Parliament can go further and indicate its view of what should be the appropriate sentence for the "normal" kind of offence, if there is such a thing. What it cannot do, either directly or through guideline-making bodies, is dictate what shall be the appropriate sentence in individual cases, the circumstances of which are infinitely variable.
It is true that from time to time the Bill suggests that judges may use their own judgment in exceptional cases, which suggests a kind of constitutional genuflection, but it is clear that the intention is for judges to have the minimum possible discretion on any aspect of sentencing. "Big Brother", otherwise known as the Home Office, knows best.
It used not to be like this. In 1967, as a very new judge, I was due to hear an application for bail made by a famous entertainer, whom I shall not identify
further, charged with serious drug offences. It was clear that it was going to be a high-profile case. I asked the then Lord Chief Justice, Lord Parker of Waddington, what was his policy in such cases. In those days the word "policy" was used rather than "guidelines", but the idea was the same. His answer to me was a succinct: "I do not give bail in any such case". That was clear enough. I heard the application and, for reasons which no longer matter, I decided that his policy did not fit the facts of the case, and granted bail. I went back to the Lord Chief Justice to confess my sins, saying that I was terribly sorry, but that I did not think his policy was correct in this case. I have never forgotten his answer, which was: "John, think nothing of it. That is what you are paid to do". I do not think that the Home Secretary would appreciate that.No judge is accountable to any other judge; that is fundamental, but is not realised by a number of people. When I took up the work of president of the National Industrial Relations Court, I was asked by a distinguished Cabinet Minister, who is now a Member of this House, whether I was accountable to the Lord Chief Justice. I replied that I was not. He went on to ask, "Are you accountable to the Lord Chancellor?", to which I answered, "No, I am sorry, but I am accountable only to myself, my conscience and the law". That is the case for all judges.
I trust that the Home Secretary will take note of this limited but absolutely essential accountability, which is based on the judge's oath to,
- "do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will".
7.30 p.m.
Lord Mackenzie of Framwellgate: My Lords, I congratulate my noble and learned friend the Lord Chancellor and my noble friend Lady Scotland on their new appointments.
For most of my working life as a police officer at the sharp end, I was often amused, bemused and confused by the English legal system. I say "English" because the Scottish system is different, being based on Roman law. I was even driven to study law and eventually obtained a law degree at London University.
I remember many years ago when I was a youngster—in the 1950s, I think—a man called Stanley Setty being murdered. His body was never
found but his murderer was. He was a chap called Donald Hume. He appeared at the Assize Court, where he was acquitted by a jury. Imagine my surprise when, some time later, I read in a Sunday tabloid an account by Donald Hume of how he had murdered Stanley Setty, chopped his body into manageable pieces, chartered a light aircraft and dropped the body parts into the North Sea, to the delight, no doubt, of the fishes below.I have little doubt that Hume was paid for that "scoop" and it certainly made very interesting reading. What I could not understand as a small boy, however, was why his detailed admissions could not be used as evidence of his guilt. I had not heard of the legal phrase "autrefois acquit", which means that once a defendant has been acquitted by a jury he cannot be re-tried for the same offence. I believed then that that rule was a nonsense and I believe it even more now.
It may well have had some validity in ancient times when we had the death penalty and torture, when the accused was not represented and when there were few legal safeguards. We continually hear of the importance of putting right miscarriages of justice. In my judgment, it is no less a miscarriage for an accused to be wrongly acquitted than it is for an accused to be wrongly convicted. Justice demands, if it is at all possible, that both kinds of miscarriages of justice should be put right, with proper safeguards.
Then we had the more recent case of Julie Hogg, who was murdered on Teesside by Billy Dunlop and discovered hidden behind the bath by her mother, Anne Ming. Dunlop was acquitted at his trial but later admitted the offence and could be tried only for perjury.
I declare an interest. As the newly-elected president of the Superintendents' Association back in 1997, I called then for the abolition of the double jeopardy rule for the very reasons I have just given. That was strongly opposed then by the legal profession. After I retired from the police, along came the Stephen Lawrence case and the report which recommended such a change; as did Lord Justice Auld's review of the criminal courts; as did the Home Affairs Select Committee so ably led by my noble friend Lord Corbett of Castle Vale. It was also recommended by the Law Commission.
So the proposals in the Bill have powerful support. They are an important step in rebalancing the criminal justice system which, over the years, has leant over backwards to safeguard the accused—I have no quarrel with that—without having due regard to the rights and liberties of the victims of crime and the need to see justice done.
The police fully support the new provisions—not because they will give them several bites at the cherry but because there are several recent cases out there now which leave police officers extremely frustrated at knowing there is new and compelling evidence and yet, because of this ancient rule, they have to leave justice undone.
There is no question of the new arrangements being abused as important safeguards are built into the Bill. The personal consent of the Director of Public Prosecutions is required; the Court of Appeal will have to be satisfied that there is new and compelling evidence and that a re-trial is in the interests of justice; and only one re-trial will be allowed.
I have little doubt that members of the public support such a change. It is one of the necessary building blocks in the modernisation of our criminal justice system. I ask my noble and learned friend one important question: will the provision be retrospective to enable justice to be done in old cases where new compelling evidence comes to light through modern scientific methods? The relatives of many victims certainly hope so.
I have mentioned in your Lordships' House previously the case of Ian Carr, who, on New Year's Eve, crashed a stolen car into the car of the Sawyer family in Northumberland, killing little Rebecca Sawyer, aged six years, and seriously injuring her baby sister, who was thrown out of the car. Not only did Carr callously flee the scene but he was disqualified for life. He had never held a driving licence and had 89 previous convictions, one of which, tellingly, was for causing death by dangerous driving. On that occasion his 16 year-old friend died and, again, Carr callously fled the scene.
The judge in the trial complained of the limited sentencing powers in such a case. As a direct result, I made representations personally to the Home Secretary for sentencing provisions which would allow the courts to do justice. I am delighted to see that the Bill now contains such provisions. Not only does it raise the maximum sentence from 10 to 14 years, it also provides in serious cases, including causing death by dangerous driving, for the imposition in certain circumstances of an indeterminate sentence or, as the Bill calls it, imprisonment for public protection.
This means that where a serial killer such as Ian Carr shows any indication of re-offending, such as driving while disqualified or stealing cars, his licence can be revoked and he can be taken back into custody before he kills another innocent victim. This is another building block in the modernisation of the criminal justice system and again it is strongly supported by the police and the judiciary.
While I am dealing with homicide, I should say that I am against capital punishment for two reasons: the risk of wrongful conviction and the reluctance of juries to convict. Having said that, I believe that when capital punishment for murder was abolished in 1965 there was a contract made whereby politicians undertook that where murderers were a danger to the public a life sentence would mean life. In my view, that debt has not been honoured.
When I was doing research for the debate I was astonished to find that, between 1997 and 1999, 900 serious offences, including rape and murder, were committed by criminals who were under the supervision of the probation service. That is 900 victims. In 1998, five murders and five rapes were
being committed every month by supervised offenders, a rise of 25 per cent on the previous year. That is 60 murders which would not have been committed if the perpetrators had been in prison. In the 10 years from 1989 to 1999, 41 murders were committed by offenders previously convicted of homicide. Again, that is 41 men, women and children who would still be alive if the perpetrator had been incarcerated.There is a tendency in your Lordships' House to discuss these important issues with a lofty detachment from the real world. I spent 35 years picking up the pieces in the real world and I can tell your Lordships that these issues do matter to ordinary people. In my view, this House and another place have a critical responsibility—nay, a duty—to protect their citizens from the most serious of all crimes, murder.
Unlike many other countries, our constitution is unwritten and Parliament is sovereign. There are numerous examples of Parliament legislating to change the common law developed by the judiciary. That is exactly what is happening here. Parliament is setting out limits under which judges will operate. It is not a case of the Home Secretary taking on the judges; it is Parliament carrying out the democratic will of the people of this country.
I have no doubt that we shall hear accusations of populism—indeed we have done so—as though doing what the majority of our citizens demand is somehow demeaning. "Judges know best" is the cry. You tell that to the man in the street. People are crying out for justice. Experience tells us that, good as the judiciary is—I have a great deal of respect for the judiciary—it does not always know best.
Multiple murders, terrorists, child and sadistic killers should stay inside for the whole of their lives. Offences of murder of police officers, prison officers and witnesses, and those involving the use of firearms or guns, should attract a starting point of 30 years. Fifteen years is a reasonable minimum starting point for the remainder of offenders who commit the foul deed of murder.
By a 78 per cent majority, the police have just voted to remain unarmed on normal patrol. I and they therefore welcome the imposition of a five-year minimum sentence for carrying a firearm in a public place, to deter people from, as has been mentioned, carrying firearms often as fashion accessories. That proposed minimum sentence should prove to be a useful deterrent.
I could mention many other provisions. Alas, however, time does not permit me to do so. The aim of the Bill is to rebalance the criminal justice system in favour of the only non-voluntary participant in it—the victim of crime. In that objective, it has my full support.
7.41 p.m.
Lord Carlisle of Bucklow: My Lords, like the noble Lord, Lord Mackenzie of Framwellgate, I begin by offering my personal congratulations to the noble Baroness and to the noble and learned Lord, Lord Falconer of Thoroton, on their new positions.
The noble Lord, Lord Brennan, told the noble Baroness that it was like taking a rather large, late return. I have no doubt that she will have much time to mug it up, if we are to have one meeting only of the Committee before the Recess. I am sure that she will listen with care to all the arguments that are put to her during that time.
As other noble Lords have said, the Bill is both complicated and detailed. I shall confine my remarks to three issues: the abolition of trial by jury; evidence of bad character; and the sentencing proposals. However, before I begin, I should tell the noble Lord, Lord Mackenzie, that I listened with great interest to his speech. Although I am sure that he would not necessarily expect me to agree with everything that he said, I totally agree with him as far as concerns double jeopardy. If there is new and compelling evidence, which was not available at the time of the original trial, I have never understood why a person should not be retried upon it. With regard to the three matters about which I propose to address your Lordships' House, much has already been said on juries by the noble Lord, Lord Brennan, and much has been said by the noble Baroness, Lady Linklater, on sentencing, with which I agree. I hope that that may further shorten my contribution.
As we all know, the right to trial by jury has been a fundamental right of people charged with serious offences in this country. I believe that it should remain a fundamental right. As the noble Lord, Lord Brennan, said, a jury represents the public's participation in the criminal justice system. Juries are respected and regarded as wholly independent. Their decisions are accepted and relied on by the public in a way that I am not sure would necessarily apply to decisions made by a judge alone. Juries are generally accepted as being the best forum for findings of fact, applying, as they do, their knowledge of every-day life to the issues that they have to consider.
I am against all three changes proposed by the Bill. I do not consider it desirable that an individual defendant should be able to choose the mode of trial that he perceives to be in his best interest. I believe that the mode of trial should be similar for all serious offenders.
I deal next with the proposal concerning long and complex cases. Although I appreciate that the Government are entitled to say that it was recommended by the Roskill committee, and perhaps even at an earlier stage by the James committee, I do not believe that the case for it has been made out. I say that for two reasons. First, ultimately, the issue at the heart of long and complex trials is usually whether the accused person was acting honestly or dishonestly. I believe that a jury is the best judge of dishonesty in those circumstances. In addition, with a conviction rate of over 80 per cent in cases of serious fraud, the Government have produced no evidence to show that the present system does not work. I am, therefore, equally opposed to that change.
In conclusion, I turn to the proposed change regarding tampering with jurors. I do not believe that an individual's right to trial by jury should be refused on the basis of what may happen rather than on what has happened. It seems to me that the allegation that there is a real danger that a jury may be tampered with could be advanced with competence by a prosecution in almost every major drugs case in this country at the moment.
I ask two specific questions. First, what would be the position in a case involving more than one defendant, as is usual, where it is believed that the threat to tamper has come from only one? Secondly, if a judge makes a decision based on what he has been told in an in-camera hearing—namely, that there is real evidence of tampering—who is then to try that case? Conscious of that evidence, would that judge be able to try that case? Alternatively, should it be tried by another judge who is aware that the case is being tried by a judge because a previous judge was satisfied that such a risk may arise? I believe that we should leave the right to jury trial as it exists today. The proposed erosions would have a great effect on the number of trials ultimately not tried by a jury, which, to our regret, would grow over the years.
I turn to my comments on the issue of widening the scope of evidence to include previous convictions. In practice, I believe that the provision of evidence of a person's previous convictions is thoroughly dangerous, unless it is clear that that evidence is wholly relevant to the matter for which he is being tried. The knowledge of what he has done in the past, rather than the evidence of what is said against him at that moment, is likely to lead to unfairness and wrongful convictions.
Under existing law, a defendant's character can be put in if he chooses to advance evidence of his character or to attack the evidence of another. Under existing law, evidence of similar fact can be put in where the probative value of that which is now said against him and the evidence of similar previous facts is such that a jury should hear it. To widen that further, if evidence of a previous conviction were to be advanced at any time on the basis of almost a presumption, that would lead to people being tried on their records, not on the event. It would be persuasive, powerful evidence; but, equally, it would be dangerous evidence.
I turn to comments on sentencing. As I said, I agree with—and shall adopt, if I may—a great deal of what the noble Baroness, Lady Linklater, said. With regard to sentences of up to 12 years' imprisonment, I welcome the attempt to provide effective alternatives to imprisonment. I welcome the attempt to restore the principle of the suspended sentence.
I welcome also the statement that prison should be used only if any other penalty is insufficient. Similarly, I welcome the statement that time spent in prison, when applicable, should be as short as possible. These proposals are, I believe, admirable. Prisons today are desperately overcrowded. The chance or rehabilitation or reform, which must be one of the aims of the Prison Service, is therefore accordingly reduced.
It is not the aims of the Bill with which I disagree; I do not believe that they will be achieved in practice. If we look at the provisions, consider what the noble Baroness said, and add to that the proposals on sentencing for more serious offences, the effect as a whole will be to increase the prison population enormously rather than reduce it.
I remind the noble Baroness that the Parole Review Committee, which I had the honour to chair, was set up by the then Home Secretary because of a loss of confidence in the parole system based on two matters. First, there was the wide difference between the sentences passed and the sentences served. Secondly, as regards offences at the lower end, people who were given different sentences came out at the same time. You could not differentiate between the criminality of the individual defendant.
In this complex system, as I understand it, there is a real danger that the present proposals for sentences of less than 12 months would give rise to the same concerns that led to the setting up of the Parole Review Committee and led us to recommend what we believed was a simple, realistic and proportional basis—namely, that everyone should serve 50 per cent of the sentence that was passed.
My second point is that I do not believe that the resources will be made available. It is right that we did not suggest licence for those serving sentences of less than 12 months, and that that is not in the present system. The reason was the effect on resources at that time. It is difficult to believe that the resources will be made available to carry out these proposals. I hope that I am wrong, but I fear that I may be right.
Finally, as far as concerns the sentencing for specified offences, I agree wholeheartedly with what was said so eloquently by the noble and learned Lord, Lord Donaldson. I believe such proposals represent a gross restriction on the power of the trial judge to pass what he believes to be the right sentence, having heard all the evidence.
The duty to sentence is the duty of the court, having heard all the evidence within the framework laid down by Parliament. It is not Parliament's duty to attempt to impose the individual sentence. Moreover, when a sentence is given, it should, as far as possible, be given in open court so that the individual knows the effects of that sentence and the public is aware of it. If I understand the proposals in this Bill correctly, they will lead to an enormous increase in indeterminate sentences, which will mean that the clarity of the sentence and the ability of the judge to specify the duration of the sentence will be reduced. I believe that the same arguments apply against the proposals as regards murder.
Basically, the Bill is an attempt to produce mandatory minimum sentences in a way that I believe is unacceptable. I hope that we shall have the opportunity to discuss all these matters in the Bill's Committee stage.
7.54 p.m.
Baroness Mallalieu: My Lords, like other noble Lords, I congratulate the noble and learned Lord the Lord Chancellor on his new appointment and also on his expedition. It is quite something to outline a major government Bill of 374 pages at the rate of 26 pages a minute, which he did. I also congratulate the noble Baroness, Lady Scotland. Many of us will be greatly reassured that she is in her place on this Bill, because we know her to be a strong and doughty defender of a strong and independent Bar and an independent judiciary. We look to her for some assistance in those areas that worry us greatly.
As someone who has practised at the criminal Bar for some 30 years—largely defending, in recent years—I have been very saddened by what has been going on in the last year or so, particularly in the last few months. It seems to me that the criminal justice system has become a political Dutch auction, each side making more and more sweeping promises for change to secure longer sentences and more convictions, with the danger of the presumption of innocence, the right to trial by jury and fairness itself at risk of being the losers.
I am not complacent as a result of my personal experiences and I am not here to speak in a trade union role for others in my position. I can see that there is an enormous amount that could and must be improved in the way our criminal justice system works.
We are told that the purpose of the Bill is to improve public confidence in the judicial system. I think it right to pause for a moment to look at what, I believe, the public want from a criminal justice system. They want to know that when it occurs a crime will be fully and properly investigated, and that those who are on the receiving end will have full information about progress and the decisions taken. Victims, witnesses, jurors and those who are accused do not want to be messed about waiting for a trial to take place, or at court when giving evidence or through being brought back to court over and over again because of adjournments.
If the accused is acquitted, those concerned need to know why. They need to know that it was not simply a technicality that led to the acquittal, when there was plain evidence of guilt, or that there had been lack of proper investigation. They need to know that it was the result of a fair assessment of the evidence on both sides. If the accused is convicted, the public need to know that the accused will receive a sentence which is just, in the circumstances of the case, and, where necessary, protects the public in the future. In many areas the Bill achieves that, which is beneficial. I hope that my noble friend will forgive me if I leave those to be dwelt on in detail in the long hours of September, October and November.
If I seem negative, it is because the matters I raise now are the ones which trouble me, as they do other noble Lords. I agree with every word that the noble Lord, Lord Brennan, said about the erosion of trial by jury. The pressure for this change does not come from a public who have lost confidence in that system. Far from it. Because the jury is random, it has the
confidence of the public that it is independent. Who better than the general public, with collective wisdom on a jury, to act as the best judges of what is right and what is wrong?In this country we try really serious crime with a judge and jury, not just historically, but because it works. All forms of deciding guilt or innocence are, in a sense, a blunt instrument. I know that very well, having sat, as others in this House have done, with people awaiting a jury verdict on a murder trial and knowing full well that the verdict could easily go one way as another and that the person sitting with you may be going home or starting a life sentence. But juries, I believe, get it right more often than any other system is likely to. That is my view, and I believe it is the public's view.
If it is the view of those in government that jury trial is inconvenient, too costly, or—in the dreadful phrase we hear so often—poor value for money, too slow or likely to lead to too many acquittals, let them say so and let us have a proper debate about the removal of juries altogether. I do not believe that we are having that debate. The Government know that it would be vastly unpopular and dare not do it yet. Instead, the proposal is to chip away at the edges. The chipping is to be done on fraud trials. I pause to say that I was interested in the comments of the noble Lord, Lord Brennan, but my personal experience is that a vast amount could be done, not just to simplify but to shorten fraud trials if there were proper efforts made at timetabling by judges in control of the cases and by prosecutors themselves.
The noble Lord, Lord Harris, with whom I disagree on other aspects of his speech, said, "Trust the jury". My experience is that juries are the best possible people to determine whether or not others have acted dishonestly. One proposal is to chip away at cases in which a jury might be "got at", when, although the noble Lord, Lord Harris, referred to the cost, we already have ways of dealing with just such cases and do so effectively. We move trials, often to London, which, by the noble Lord's authority is placed with the Bill. We move the location. We screen the jury from the public gallery. We have separate entrances for them, and, where necessary, we have jury protection. We often achieve verdicts of not guilty or guilty based on the evidence.
We are also told that a defendant possibly could choose the mode of trial in serious cases. That would be bound to lead to a two tier system in which a jury might well wonder why the defendant had not wanted to be tried by a trained lawyer. A judge, however great his experience and however judicial or dispassionate he was able to be, could not fail to be affected in a high profile case by the mass of publicity. The decision on guilt or innocence would depend solely on his judgment, not just on the law, but on the facts themselves. We should continue to try serious crime with a judge and jury, but we should look for additional and better ways of managing cases. There is vast scope for improvement.
I am concerned about the proposal for retrial in serious offences. No one likes the idea of a criminal "getting away with it". However, I am concerned at provisions being sold to the public and this House—for example, developments of science—which enable there to be proof where there was none at the time of trial and providing scope for the matter being retried. New and compelling evidence, when one looks at the Bill, is simply that which was not adduced in the proceedings at which the person was acquitted. I pause to ask whether that includes material that was available but where a judge ruled it should not be adduced in the original trial. In almost every major criminal trial a judge is asked to rule on the admissibility of some part of the evidence. If that means that where that evidence has not been allowed to be used, there is a ready-made ground for an application for a fresh trial we are going to see few criminal trials in which the judge's ruling cannot form the basis for such an application.
I am also concerned over what that new and compelling evidence might be, if it is something less than the new scientific forensic evidence. Will it include cell confessions, for example? They feature in all too many criminal trials, are often the basis of convictions, occur often while someone is in custody on remand and contain all the dangers of a witness who has an axe of his own to grind and is often hoping for bail, help with his own sentence or trial. Although I have heard it said that the provision would have no adverse effect for anyone except the guilty, that is not right. Anyone acquitted of a serious criminal offence would for life be at risk from attention seekers or from someone with real malice towards him based on a false allegation that he had subsequently admitted that he committed the offence.
I can see that there is an argument for a change in the law but I am unhappy with the present proposition. None of that is any substitute for proper investigation in the first place. I am concerned that in a number of high profile cases already members of prosecuting authorities have been indicating that they will propose the reopening of trials. The danger of prosecuting authorities who have been criticised having another go, unless the provisions are tied extremely tightly, will be almost overwhelming.
I am concerned about the proposed changes on disclosure. They are not a level playing field. There is a requirement that the defence disclose far more than the prosecution in relation to how they propose to conduct the trial and about the witnesses they either have investigated, spoken to or obtained statements from but do not intend to call.
I am concerned about the evidence of bad character and hearsay evidence. Changes need to be made, but in each case the leave of a judge should be required, and in each case the evidence should be relevant before being admitted.
I am concerned about the sentencing provisions, in particular the proposed changes in relation to murder trial sentencing. For a fair sentence a judge must be able to make the punishment fit the crime and the
defendant. Sentencing cannot be carried out in the Home Office or in the newspapers. It can only be carried out by someone who has heard all the evidence and seen those involved. In rebalancing the criminal justice system, which is what we have repeatedly been told the Bill is about, we have to be careful not to tilt the scales of justice so that those who should not be convicted are convicted. There could be nothing more calculated to undermine public confidence in the system, and some of the Bill's measures I fear could do just that.8.7 p.m.
Lord Mayhew of Twysden: My Lords, I, too, should like to begin by very warmly congratulating the noble Baroness, Lady Scotland, on her promotion. We know that in the course of the long Committee stage to which we all look forward she will deal with this Bill with high intellect, considerable toughness and a most dangerous degree of charm. We all look forward to further demonstrations of that combination. I think that she is probably already learning, if she has not learned it already, that on the Treasury Bench the sharpest darts come from behind her.
I agree with every word that has been said by the noble Lord, Lord Brennan, and the noble Baroness, Lady Mallalieu, who has just sat down. I should like to endorse the noble Lord's comment that although there is indeed much that is admirable in the Bill, it would be a waste of an opportunity to focus on that when there are plenty of provisions that are a good deal less admirable. Now is our chance to indicate those areas of concern to which we shall certainly be returning in Committee. I very warmly welcome what was said by my noble friend Lady Anelay on the Front Bench about those areas of concern.
My first criticism of the Bill is not that the Government are legislating once again. We all know that they are taking their place in a long procession that has wound its way since the war. I remember taking part in a Criminal Justice Bill myself in 1981 when I was in the Home Office. I do not criticise at all the Government for legislating again. It is perfectly apparent—if only from the statistics cited by the noble and learned Lord the Lord Chief Justice at the beginning of his most remarkable speech—that there is still something very wrong indeed in the field of criminality and the steps that we take to counter it.
My criticism is not that the Government are legislating again; it is this. For all its portmanteau dimensions, this latest Bill contains much important stuff that has been packed in haste, flung in at the last minute and not selected with care. No fewer than 35 clauses and six schedules were added in the course of progress in another place, most on them on Report. The Government's guillotine secured that two groups of government amendments, including four new clauses and two schedules, received no examination whatever. Even so, we are told that there are yet further future provisions that did not get packed at all and which we can expect to arrive in a separate parcel.
I am sorry to sound rather heavy about this, but it is a point that has scarcely featured so far in our discussion of the Bill. I do not think that our increasing familiarity with this kind of treatment, so far as legislation that comes here is concerned, ought to dull our instinct to protest. Mine is not dulled anyway. Once again this unelected House will be obliged to do, and I am certain will do, what the elected House ought to have done already.
What an irony it is that so much of the Bill is intended by the Home Secretary to reflect what is said to be wanted by so-called ordinary people. What an irony it is that the people by whom another place is elected are not in some important respects any longer to be represented in the procedure by which criminal trials are conducted. I think that that is an extraordinary irony. We shall need a long time in Committee to deal with the work that another place should have done. I think that we ought to be able to trust that we shall get it.
On the Second Reading of such a portmanteau Bill one can make only a piecemeal contribution. Mine will move now from an irony to what I consider a paradox. Here is a Home Secretary who puts his faith in the judgment of ordinary people and proclaims so intemperately his lack of faith in the discernment of the judiciary, but who is trying here to cut back the right to trial by jury in favour of trial by judge alone. I must be fair—he has dropped for the moment his plans to deny that right to people like the harassed but innocent housewife charged with shoplifting from a supermarket. Who could say that she might not reasonably reckon that by 12 ordinary folk her innocence might be more readily recognised than by perhaps case-hardened magistrates? But Part 7 makes specific inroads on the right to jury trial on indictment, which in my view are dangerous and unnecessary. Partly they are dangerous because they are unnecessary. Part 7 does that in favour not even of trial by a judge sitting with lay assessors, as Auld recommended.
The point has been made, but it is worth making again. What will happen when a City tycoon is tried by a judge alone and acquitted of serious and complex fraud? What can we expect to hear from the Home Secretary in those circumstances about the limitations of the judiciary and their inadequate personal backgrounds, however they may by then be appointed? Will public confidence in the acquittal be as secure as it would be if a jury had heard the case? I do not believe that it could be.
In proceeding down this road the Home Secretary is acting in the teeth of what the polls have shown, that so-called ordinary people want to keep their rights to jury trial undiminished. That point has been well made by other noble Lords. If these provisions carry, I confidently expect that in the next criminal justice Bill, say in 12 months or so, the harassed housewife will find herself back in the frame again and many more as well.
I recognise, of course, that with the present Government, it is idle to pray in aid the long history of any institution or a constitutional right. As far as
constitutional matters are concerned, that is a red rag to their bull in a china shop. But they ought not to be indifferent, surely, to the claims of democracy, and the involvement of the community in the criminal justice system. Have they forgotten how, for example, a jury can be a bulwark against legislation that ordinary people think is oppressively widely drawn? I for one have not; and it led us some years ago in one instance to reform the Official Secrets Act, belatedly and beneficially.
- "Clause 42 represents erosion of jury trial on grounds of expediency. Neither length nor complexity constitutes a proper justification for this erosion. There is no evidence to suggest that juries do not follow serious fraud cases".
I hope that the Home Secretary will no longer claim that this is the Bar Council going in for special pleading in its profession's own interests. I do not see how that can be argued seriously, but if it were it would chime pretty oddly with the Bar Council's opposition to retrials after acquittal, when fresh evidence has come to the knowledge of the prosecution.
All those matters have to be argued on their merits in Committee. To go into ever more detail on the provisions of the Bill would be to make a Committee speech and would weary your Lordships excessively. I warmly welcome the indications given by my noble friend of the areas that we shall consider.
For my part I am astonished that before the Sentencing Advisory Council has even been hatched its pinions are due to be clipped. The imposition of statutory starting points for the calculation of sentences for murders is at best premature. And given the lack of premeditation of most murders and their domestic character and their hugely varying culpability, I believe that 15 years is much to high for the lowest starting point.
I have had the advantage of looking at the paper that the noble and learned Lord the Lord Chief Justice placed in the Library and to which he referred in his speech. It is absolutely astonishing that having consulted with the Home Secretary, the Lord Chancellor and the Attorney-General about a draft practice direction that he had prepared—I refer to paragraph 47 of the paper—and having found that they had accepted that draft, apart from some minor matters, one reads at paragraph 54 that:
- "The minimum periods now proposed in the CJB (schedule 17) are substantially higher than those contained in the practice direction".
- "As far as I am aware, the new figures were not based on any advice from the Sentencing Advisory Panel. They were not the subject of any public consultation. They involved massive increases in relation to those who are now to receive a period of 30 years (equivalent to an increase of 30 years over the figure that previously applied)".
- "Furthermore, the figures are out of proportion with other sentences for serious crimes, for example, crimes involving importation of drugs which can cause huge damage to the public.
- If these figures are enacted, then they are bound to result in a substantial increase in sentencing in relation to crimes overall and distort the task of the Sentencing Council before it is established".
- "These figures can only be explained as representing a political judgment. They demonstrate the consequences of the involvement of politics in sentencing".
I ask the noble Baroness why those provisions were inserted at Report stage and on what grounds were they put in.
I conclude by saying that it is a shame that a Bill which contains much that is admirable should contain seriously damaging provisions. Evidence of bad character, the rule against hearsay evidence and the enlargement of the power of the police to detain without charge are among the areas on which I disagree with the Bill, but I shall not step into them today. It is enough to say that in my view the Government's proposals are too seriously prosecution-minded, at the expense of safeguards for the ordinary person prosecuted by the state that have proved their value over many years and are needed no less today.
I hope that your Lordships' House will preserve them.
8.20 p.m.
Lord Clinton-Davis: My Lords, I congratulate my noble friend Lady Scotland and my noble and learned friend Lord Falconer heartily on what they have achieved. They have both been very efficient, but very friendly. I thank them for that.
I agree largely with the noble and learned Lord, Lord Mayhew, not for the first time. Apart from the noble Lord, Lord Hunt of Wirral, we are the only solicitors to speak in the debate. That does not mean that the others ought to be disqualified, although there may be something in that.
Although parts of the Bill improve the law, I am rather disturbed, as is the noble and learned Lord, Lord Mayhew, by other provisions—provisions which deeply concern the judiciary as well. My views alone would be unimportant, but they stem from authoritative sources: the Bar Council; the Law Society; Justice; the Legal Action Group; Liberty. In an open letter, Justice has this to say in reference to the government amendments:
- "These are not emergency amendments. They could easily have been introduced earlier in the legislative process or during the consultation beforehand, allowing time for proper scrutiny".
All these bodies were deeply concerned that the Government—my Government—were suddenly galvanised into action, giving no adequate opportunity for their new approach to be properly considered and invigilated by the House of Commons. The fears to which I have referred have not been allayed. They, and I, want a Bill that is firm and fair. Trials ought not to be prejudiced by some of the methods prescribed. I welcome the Lord Chancellor's offer to be open-minded about improving the Bill. The trouble is that that is precisely what the Home
Secretary said in another place—and of course he did not. Therefore, we look to my noble friend and my noble and learned friend to remedy that situation.To remove juries in allegedly complex cases supposedly too complex for them is utterly wrong. I agree with those in another place that what the Government are prescribing could end with the abolition of jury trials altogether. That may not be their present intention—but it remains a real risk.
Juries, unlike judges, are not inclined to be either pro-prosecution or pro-defence. They have not heard similar cases before. They have not become case-hardened. They, all 12 of them, consider the evidence together. In that way, prejudices can be ironed out. Let us consider specifically long, complex fraud cases. Both Roskill and Auld in their committees recommended that the judge, assisted by lay assessors, should adjudicate in such cases. That, in my view, is to deny the validity of the jury system altogether. In other words, what we are going to have now is a new system, a system of trial by lawyer and experts, and all because, so it is alleged, complex fraud is too unintelligible to the public; only the experts can understand the subject matter.
Surely, in the main, what these complex cases boil down to is whether the defendant has behaved, or had the intention of behaving, dishonestly. This is the system that has endured over many years. On the whole it has not been found wanting. Since long gaol terms follow the finding of guilt, those who are charged are entitled to be tried, in my view, in the same way as other defendants. It is incumbent on my noble friend the Minister to show that it is manifestly established that juries acquit in such cases because they are unable to comprehend complex evidence. In my view, up until this stage, the Minister has not done precisely that.
Then I come to the danger of jury tampering. Yes, it does occur but I think it is in a tiny minority of cases. If I am wrong about that I am sure the Minister will come forward with strong evidence to rebut what I have said. What the Bill says in Clause 43 is that there is a "real and present danger" of jury tampering by the defendant, his family or by his associates. How is that to be proved? What happens to a co-accused against whom no evidence of jury tampering has been established? Will that defendant lose his or her rights to jury trial? I must say that in some 30 years in the practice of criminal litigation I never came across any such alleged tampering, save in one case where in the Lord Mayor's Court it was established that there was absolutely no case to answer. I did not even have to call any evidence.
The Bill proposes that previous misconduct shall be presumed to be satisfactory without any prior judicial examination. I cannot believe that that is right. What is wrong with the concept that in all cases an application should be made by the prosecution for leave that such evidence should be admitted?
I also agree with the Law Society that the Government have failed to make out the case that the defendant's previous convictions may be adduced to
establish a propensity to commit the offence charged. What the Government have to meet is the risk that the essential nature of the trial will be about general assumptions about the defendant, rather than evidence about the defence in question.Very late in the day the Home Secretary introduced amendments setting minimum sentences for murder and thereby hobbled the discretion of the judges and also the proposed— only proposed—sentencing council. It is only by examining each case on its own merits that the right sentence can be imposed. Guidelines have some merit, but they cannot be the final word. Like my noble friend Lady Mallalieu, I am troubled by the provision that the defence should always disclose the information divulged by all experts that have been approached, including that on which the defence has no intention of relying. That is a bad approach that should be wholly rejected in Committee.
I turn to the hearsay rule. In 1997, the Law Commission had this to say about it:
- "the main, if not the sole reason why hearsay is inferior to non-hearsay, is that it is not tested by cross-examination. This in itself may justify requiring the witness to attend where possible".
There are already exceptions to the hearsay rule. Business records may be admissible, as may statements of the dying or those of witnesses who may be genuinely unavailable. All of those may be admitted.
There is also a case for reform. I agree that the hearsay rule where defendants and victims will benefit from greater clarity should be a case for reform. Reform, however, must be careful and measured. It must conform to the interests of justice. It follows therefore that we should reject such change as will lead to huge amounts of hitherto inadmissible evidence being allowed. We should therefore ensure that Clause 107(1)(d) is carefully considered. The same should apply to Clause 107(1)(a) to (c).
In conclusion, the Bill makes some valuable contributions to the provisions of criminal law. However, as I have tried to emphasise, there are some very real dangers. The job of all of us is to try to improve the Bill. It is not a party political issue. I hope therefore that my noble and learned friend will examine carefully what is said and will act appropriately.
8.34 p.m.
Baroness Gibson of Market Rasen: My Lords, I am delighted with the recent promotions of my noble friend and my noble and learned friend and I know that they will serve in their new positions with great distinction.
As the noble Lord, Lord Thomas of Gresford, said earlier, the criminal justice system belongs to the people and so in considering my contribution to the debate, I started with the people. Over the weekend, I carried out a few soundings about expectations of the
criminal justice system. I began by asking someone who was involved in the criminal justice system what he believed the system should deliver. He said:
- "The essence of justice is that it cements society in a very difficult and increasingly complex world. Without it there is anarchy.
- It is essential that society has confidence in both the fairness of the system and its ability to protect the innocent and the most vulnerable, whilst at the same time dealing effectively with those who break its rules".
Other comments were that we need laws which are clearly understood; we need sentences which fit the crime committed; we need a prison system which is fit for the first part of the 21st century and which not only contains those who have committed a crime, but aims to make them better citizens on release. Finally, and very importantly, it was felt that public confidence in the system must be strengthened.
I was very interested in the reaction of the police to the Bill when I attended a meeting here in the House of Lords a few weeks ago. Their overall response was very positive, and the Deputy Commissioner of the Metropolitan Police, Ian Blair, said:
- "The Bill will do much to remedy individual and collective failures in the current criminal justice system. As it currently stands the system does not give sufficient support to victims or to witnesses—instead it leans towards favouring the defence. This Bill goes a long way to remedy this position".
I want to consider a couple of areas of the Bill, both of which are surrounded by some controversy. The first involves the question of double jeopardy, which, in my small opinion poll, was seen as denying justice as it is at the present time. The law as it stands is an old law with historic roots, which lie in the accused being protected against harassment by the state. In the past that has worked well but time moves on and now we can see that that law sometimes appears to prevent the due course of justice. We should recognise that we are talking about a very few cases—only a handful—to which any new law would apply. A retrial could take place only in certain very serious cases, despite an earlier acquittal, and only if there is new and compelling evidence of an accused person's guilt. I believe that the Government have got this absolutely right. I firmly believe that if new and important evidence is discovered, it should be presented to a court. If that does not happen, perpetrators of the most serious kinds of crime can literally get away with murder. It is believed by many that that has on occasion been the case in the past, particularly in cases of the murder of young people.
As a parent, I cannot imagine what it must be like to have your child murdered. It is beyond my, and most parents', imagination. To see the accused walk away and subsequently find that there is new and compelling
evidence against them, which cannot be put before a court because of the double jeopardy law, must be like reliving the horror of the murder all over again.In discussions about the Bill, the argument has been put that because the crimes are so hideous, the police may be over-zealous in their efforts to find new evidence if they know that there can be a retrial. Indeed, they may not be zealous enough to get evidence for the first trial. However, I have sufficient confidence in the police to believe that their approach in such circumstances would be very professional. Indeed, knowing of such suspicions I am sure they would bend over backwards to ensure that they were behaving fairly and justifiably at all stages of their investigations.
The Bill contains robust safeguards against attempted misuse of the proposals surrounding the double jeopardy ruling. The specific qualifying offences are clearly listed in the Bill. It is worth reiterating that we are talking about a handful of cases only, but these cases are vitally important. We must do what we can as a society to ensure that justice is done in these cases, as in others, for the sake of the victims and their families, and for society in general.
I will now address the question of similar fact evidence and evidence of bad character, where defendants claim to be of good character when in fact they are not, and when their previous convictions have not been admitted in court.
Currently, any such evidence is not generally admissible, even when it is relevant to the case under consideration. This is not fair to the victim, and I support the changes in the law that the Bill proposes. There are strong safeguards in the Bill, for example, both defence and prosecution must agree to the divulgence of information about the bad character of the defendant.
Information must cover the same category of offence as the offence in question. It must be relevant to important issues being discussed between the defendant and the prosecution. The court retains the possibility of excluding such evidence if it believes that it would be correct to do so. Clause 92 explains this in more detail.
The Metropolitan Police have kindly provided me with good examples of why we need these changes. I put them in the "cheeky chappy" area of defence.
The first relates to a case in south Wales where blood was found at the scene of an offence. The defence offered was that the suspect was a regular skateboarder in the area and must have fallen there, leaving blood at the scene at the wrong moment. The suspect had numerous previous convictions for burglary.
The second example, and perhaps my favourite, comes from Surrey, where a prolific and well-known burglar was found 200 metres from a recent burglary. He had with him a mask, a spanner and a bottle of diluted pepper spray. His defence at court was that the mask was for Halloween, the spanner was for his
bicycle, and that he was in the area looking to buy cigarettes. Similar fact evidence was not admitted. He was acquitted.I do not accept the claims of some critics that such admissions will divert the course of justice. As we have said time and time again today, juries are not stupid. They must be treated as adults. As my noble friend Lord Harris of Haringey said, they should not be denied the full use of evidence and they should have the most comprehensive picture possible before them before they have to make their decisions.
Juries should be able to judge the individual in the context of his or her overall behaviour as a citizen. As we have heard, the law as it currently stands has been strongly criticised in a number of important studies. I welcome this attempt to bring more equality to the proceedings between defendant and victim.
Finally, I wish to raise a question that I hope the Minister can answer for me in her winding up. As I understand it, late government amendments to this Bill were tabled in the other place, which allow non-public servants to have access to highly sensitive information held on the police national computer.
The Public and Commercial Services Union, which represents the Civil Service staff of the Criminal Records Bureau, is concerned about this. It believes that such information should only be accessed by public servants working in the public sector. The union is worried about data protection and national security implications. It is particularly concerned because it believes that such proposals would allow this information to be passed outside the UK. The Capita group, about which we spoke earlier today in Question Time, is already outsourcing its data processing work to India.
I would be obliged if the Minister could explain the rationale behind government thinking in this area and answer the fears expressed by the workers involved.
8.45 p.m.
Baroness Seccombe: My Lords, I am conscious that many noble Lords have considerably more experience and expertise in this field than I do, so I will confine my comments to two areas of the Bill which cause me particular concern. The first is the provisions made for trial by judge alone and the second is the new allowances for the admission of evidence of bad character. I shall take each in turn and outline why I am troubled by the direction in which the Bill is heading.
The Bill would allow trial by judge alone in three circumstances. The first is if the defendant asks for it and is given the consent of the court. The second is in cases of complex or lengthy financial and commercial arrangements. The third is if there is a serious risk of jury intimidation. I would argue that even in those instances, and perhaps above all in those instances, trial by jury should be protected as a safe, reliable and effective way of delivering justice. I quote the Bar Council, which believes that the threat to juries made by this Bill is an
- "opportunistic invasion into . . . the best and fairest form of trial".
The Bill changes the role of judges irrevocably and certainly in my opinion for the worse. In addition to his traditional role of sentencing, a judge sitting alone would be given the heavy responsibility for determining the guilt or innocence of a defendant. The repercussions of this are huge. They would be moving beyond being experts in the law into new territory—fact finders—and as such the sole source of accountability. In this way, the burden is placed entirely upon one person, with all the implications that would be involved. He or she would be subject to increased media scrutiny. Questions would be raised as to the rationale of any decisions made; his personal beliefs; his ability to remain impartial; and so on and so forth. I can see the stories quite clearly on the front pages of the tabloids. Is this really the direction in which we wish to go?
The circumstances the Government have deemed suitable for judge-only trials are precisely the circumstances in which it would be most dangerous to do so. Threatening characters with little respect for the law would probably favour such proceedings and be willing to play for high stakes. The pressure put upon a single judge would be enormous and he may become the victim of threats before or during a trial, or subjected to crimes of retribution following a trial. Judge-only trials would inevitably provoke a questioning of the independence of the judiciary.
I also strongly believe that as a matter of principle juries should continue to operate in all Crown Court criminal cases. There is a danger that the public would perceive judge-only trials as white collar crimes being tried in special circumstances by their peers and fellow professionals. These cases would be set apart from normal criminal procedure, giving the appearance of a regulatory tribunal and the guilty being let off lightly. Instead, we should make it clear that everyone, no matter what their crime, should be judged by a cross-section of the public with no special cases.
Above all, I believe that the circumstances the Government have outlined as cases for judge-only trials can be more than satisfactorily dealt with by the current system. First, if the defendant requests trial by judge alone, this is surely based upon a calculation that he or she stands a greater chance of acquittal or being given a lighter sentence. Surely we should not allow the system to be manipulated in this way.
Secondly, when a case involves complex commercial or financial detail, it is up to the prosecution and defence to simplify matters so that it is understandable by all. Issues that are important in establishing whether the accused is innocent or guilty—such as whether he is telling the truth—are usually not hard to grasp.
Finally, when there is evidence of jury tampering, surely the right thing to do is just to continue the present practice; a new jury should be found. We should not bend to the threats of organised crime by eliminating the jury so that they can focus all their efforts upon intimidating the judge, who will then become the only target.
I am most concerned that an institution so successful and well respected as trial by jury is coming under threat in this Bill and I cannot voice my opposition to this aspect of it more strongly. I add to this an expression of my fears about evidence of bad character and the assault this makes on another pillar of our justice system—the principle of innocence until proven guilty.
I understand and accept there can be instances when it is important for previous convictions of a defendant to be revealed to the court. I think a good balance is achieved at present where a defendant's previous convictions are revealed only if the defendant attacks the bad character of a prosecution witness or the defendant asserts his own good character or if there are strikingly similar circumstances to a previous conviction. But extending this, as the Bill proposes, is in my estimation a dangerous and unwelcome proposition.
By allowing evidence of bad character to be given more freely, a number of unfortunate consequences would result. A significant aspect of innocent until proven guilty is that during the trial, judgment should be based upon the evidence provided. If a guilty verdict is returned, this is because the evidence overwhelmingly points in that direction. With evidence on previous convictions admissible in more circumstances, there is a risk that on these occasions, judgment will be made on the back of general assumptions about the bad character of the person charged rather than sufficient attention being given to the evidence before the court.
I am glad that in all my time on the Bench I was never aware of a defendant's record until after the completion of the prosecution and defence cases. I feel I was able to approach the case with a clear mind and no preconceptions. I believe it is more likely there could be miscarriages of justice: whether it is because of the previous conviction, that the police suspected, arrested and brought a person to trial in the first place, or maybe because of the same previous conviction a guilty verdict is returned.
If a person has committed a crime once, they may be more likely to be found guilty again. This will take away the importance of the meticulous collecting of evidence in preparation for a trial as possibly what will really sway the jury is the list of crimes that an individual has committed previously. The very real temptation for the police would be to round up all the usual suspects following a crime, taking the view that convicting them would be so much easier when their bad character would speak for itself. What is more, it would be so much harder for ex-criminals to rehabilitate in the knowledge that they would be labelled and presumed guilty if they were ever to end up in court again.
There are measures in this Bill that I welcome but others that worry me as the needless attack upon well-tried and tested elements of our judicial system. While I understand the Government's efforts to increase efficiency, I feel that this should not in any way be an
excuse to cut corners and it certainly should not be to the detriment of thoroughness and scrupulousness. I am afraid that in certain instances, that is exactly what this Bill would achieve.8.54 p.m.
Baroness Kennedy of The Shaws: My Lords, I too would like to extend my congratulations to my noble friend and my noble and learned friend, but with some caveats. I would like to say to my noble and learned friend the Lord Chancellor—who is going to be involved in some serious constitutional change—that as one of the members of this House who gave evidence to the Royal Commission on Reform of this House, I was very much an advocator of a reform of the Lord Chancellor's role. I felt that the time had come for there to be a supreme court and for our judiciary to be given their proper place in our legal firmament. I also felt strongly that it was no longer appropriate that the Lord Chancellor should sit as a judge or appoint the judiciary or Queen's Counsel as in the past, and that the time had come to create a judicial appointments commission.
However, I am concerned that the way in which those changes have now taken place will place much greater power in the hands of the Home Secretary, without the check and balance, as it were, of having the Lord Chancellor in the Cabinet to speak on criminal justice matters and about how liberty may be affected or the judiciary undermined.
I also give my noble friend Lady Scotland a warning. Entering the Home Office has a strange effect on some people. I suspect that it is something in the water, but it tends to have a terrible impact on any tendency towards liberality. I ask her to prevail against that and to take great care.
I am afraid that the Bill is yet another example of the Government's somewhat drunken romance with modernisation. There is nothing wrong with modernisation, but it should be grounded in principle. This is modernisation without any thought about the impact on the checks and balances that are so fundamental to the system of justice. It is modernisation with no account given to the cost in terms of injustice if people are wrongly convicted, and without drawing at all on the wealth of moral and legal wisdom that has informed our system for so long.
No one suggests that the law should remain unchanged. One strength of our legal system is that it develops by accretion—it adds new layers to deal with changes in our world and society. Sometimes those changes must be fought for strenuously, as has been the case in trying to make the law respond to the changing status and aspirations of women. Sometimes the fight is against the conservatism of the legal profession or the judges. Sometimes, it is a struggle against the reactionary views of the government of the day.
Constitutional change or change to the system of justice should always take place against a backdrop of principle. I have long advocated legal reform to make the law accessible, more representative and more in
tune with contemporary life. But I can only express my profound disappointment—in fact, disappointment is too generous a word; my shame—at the roll-call of this Government's assaults on liberty. If we reflect on them, they make for sorry reading.It is disgraceful that a Labour Government have behaved in so cavalier a fashion with civil liberties during the past six years. They have failed to remember that when civil liberties are removed, the first to suffer are the most marginalised in our society; and that the safeguards created over the years are the product of struggle and pain experienced by the very people that we are supposed to protect from abuse. We can be absolutely sure that it will be the black and other minority communities who will first find their young people wrongly arrested and convicted when it is made easier to obtain convictions. It is always those with least voice in our society who suffer most when civil liberties are removed.
It saddens me to say this, but I see the Bill as the product of a Government which, despite their huge majority—this is such a surprise to so many of us—are still so unsure and insecure that they look to opinion polls, focus groups and the tabloid press before creating policy; that they respond to a small number of high-profile cases when reforming justice; and that they become belligerent when judges hold them to account, as judges properly should. It is as though some kind of swaggering machismo dictates law reform, so that the Government can show that they are doing something, anything, to demonstrate that they can be tough on crime. That reminds me of nothing more than men who boast about size to mask uncertainty about their masculinity, and my God, we have a big Bill here.
Liberty, I am afraid, is not divisible in the way the Government seem to think. When governments remove liberty, they always seek to persuade people that it is in their interests, that it is only the criminals who will suffer the consequences and that the innocent have nothing to fear. The truth is that the "them" they are protecting us from is really "us".
The key features of this Bill which cause concern have been rehearsed by many noble Lords. I do not intend to repeat many of their injunctions to the Government, alerting them to the folly of much that is contained in this legislation. However, I shall deal first with the attack on juries. I do so because I have spoken many times in this House about juries.
I say to the House: do not be fooled. This is a journey and the past should be our guide. The Government have designs on the jury, and this is just the beginning. We know that because we have been here before. Time after time, we tried to deal with the importance of juries in our system and why we need to retain them. A previous Home Secretary sought repeatedly to undermine jury trial. A new Home Secretary is seeking to do the same, but from a different direction. As others have said, while this may seem to deal only with complex fraud matters, do not be deceived, because we are being told that anything complex involving financial matters could fall under
this heading. We can be sure that it will involve money laundering and therefore money laundering in relation to drugs. It will involve money laundering in relation to terrorism and we shall find it creeping into many other areas. So when the Government say, "Trust us. Jury trial is safe in our hands", I am afraid that trust is something that many people are now questioning.Secondly, I shall deal quickly with double jeopardy. Here we are creating a provisional acquittal. It means that when I finish a case—and I do not represent the rich; I do not represent those who are hugely privileged—and my client has been acquitted of a serious crime, I cannot say, "Put this behind you. Start again and forget the trauma and nightmare you have been through". People will always be afraid of the hand on their shoulder. It is what the people of this country have happily lived without.
Of course the story is told that this is all about DNA, but have we heard of one case in the pipeline where the DNA would suddenly solve something, where someone has been acquitted and DNA has now shown that they were guilty? If it were there, we can be sure that it would be pointed out and the case named. The Government point to a very small number of cases in relation to double jeopardy, in fact four in all; two of them concerning cases where, after the event, professional criminals wrote books or went on television boasting of crimes they had committed. They were going to benefit financially from doing so. There might be a question mark over whether they had been truthful about the crimes of which they had been boasting.
Another case is a sad one of a young woman who was murdered. Having been acquitted, her murderer later confessed. However, he was tried for perjury and given a prison sentence. Although that was not the same sentence he would have received had he been convicted of murder or manslaughter, at least there was some recognition of the wrong. However, taking away the double jeopardy rule will mean introducing a whole new phenomenon that the press, the media and campaigners will develop as soon as someone steps out of a courtroom having been acquitted.
I know that other noble Lords have referred to the issue of previous convictions but it really is about deleting the standard of proof and introducing a presumption of guilt. Important work has been carried out by Professor Sally Lloyd Bostock, who is both a lawyer and a psychologist. She has looked at the way in which certain information could affect judgment. She is very concerned about how this kind of information could totally distort the way in which a jury would assess a case. No research has been carried out by the Government on any possible impact this may have. This is law reform being made in response to a populist agenda.
While reading on the front page of the newspapers daily concerns about the state of our prisons, the number of people currently in them and the crisis this is creating, we are now seeing a ratcheting up of sentences and rhetoric being used by the Home Secretary which can only add to the numbers already in prison.
I am very concerned that the doubling of the sentencing powers of magistrates may have the effect of increasing the number of people on small sentences within our prisons, but I am particularly concerned about the ratcheting up at the higher level. We may end up travelling down the same road as the United States. Already we are at the top of the league table for the whole of Europe in the way in which we sentence people.
Ministers seem to forget that justice is not only a result but also a process. If it was only a result we would be content for police officers to behave badly in police stations in order to secure confessions in unacceptable ways; we would be content for evidence to be found in wholly unacceptable ways. But we know that the process matters, too, because of the effect that it has on the public and the confidence there must be in our system.
There are miscarriages of justice in the freeing of the guilty and in the convicting of the innocent. The problem is that other than by improving police investigations—which certainly need improving—there is no way of reducing the freeing of the guilty without increasing the conviction of the innocent. Every time we make it easier to convict the guilty we increase the likelihood of convicting the innocent. We also increase the violation of individual rights.
We have to ask ourselves as a society whether that is a price we are prepared to pay. Are we happy that innocent people should be locked up? Have we forgotten the lessons? Did the Prime Minister ever read about Giuseppe Conlan and the campaign of the cardinal for his release? He was a man who was innocent—and on his deathbed proclaimed his innocence—and was wrongly convicted. Did the Prime Minister and the Home Secretary ever read about or hear speaking Stefan Kisko, a man who was innocent but who spent 17 years in prison after being convicted of something that he had not done? His mother died and he himself died two years after his release, his life having been hell in prison because to be convicted of murdering a child is one of the worst things any prisoner could have done. Do any of these stories ever impact on Ministers? Do we not remember? Is memory expunged? Or is it wilful amnesia?
Law matters. Liberty is precious. When the Government talk about rebalancing the system, do not be deceived. We are not talking here about rebalancing the system in favour of the victims, we are talking about rebalancing the system in favour of the state. The Bill gives huge, increased powers to the state, which is why it is so pernicious. Others have said that the Bill contains some good proposals. That is true, but, by heavens, they are far outweighed by other terrible proposals.
I shall take part in all the Committee stages in this House. There are many ways in which we, the Members of this House, will seek to be heard. We only hope that this time the Government may listen.
9.10 p.m.
Lord Lloyd of Berwick: My Lords, I had hoped to be able to take part in this debate. I have listened with great interest to the speeches made so far, not least that which we have just heard from the noble Baroness, Lady Kennedy of The Shaws. However, as your Lordships will perhaps already have appreciated, I have unfortunately—or fortunately—lost my voice. Therefore, with the permission of the House and the consent of the noble Baroness, whom I, too, congratulate, I wonder whether I may let her have in writing the points that I would have made, all but two of which have already been very fully covered. Since I cannot expect the noble Baroness to reply to a speech that she has not heard, I also wonder whether, with the further permission of the House, I might now retire home and promptly go to bed.
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