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In a letter sent to me on 14 June and, I think, copied to other noble Lords and placed in the Library of the House, the Minister has explained that an exploitation proceeds order can be made only by way of application to the High Court and that the court will have wide discretion-that is, of course, very helpful practical protection for the respondent; namely, the author of the memoirs. However, the Government also emphasise the expected rarity of the orders.
I would further argue that the publication of a criminal's memoirs may in some cases have beneficial outcomes in terms of the rehabilitation of the offender, just as learning new technical or language skills or discovering one's artistic talent may assist in the rehabilitation of a prisoner.
Let us recollect prison diaries by sometime parliamentarians. I do not know what your Lordships' taste in books runs to, but it may run to the quasi-confessional thoughts of former Member of Parliament Jonathan Aitken. It may run to the detailed experiences of prison life of our fellow Member, the noble Lord, Lord Archer of Weston-super-Mare. I doubt that the possibility of public outrage justifies further restrictions on the freedom of expression of an offender, whoever he or she may be.
I have already made the points that there are restrictions under the Prison Rules, and that the confiscation provisions of the Proceeds of Crime Act 2002 can be used to recover any excessive royalties that one may come across in an occasional case where it is desirable for confiscation to take place. The Minister tells me that the application of the confiscation provisions of the 2002 Act is "far from certain". While confiscation orders would normally be obtained at the point of conviction, a publication about a crime may not be written until many years after the event. The Minister does not say that confiscation orders under the 2002 Act cannot be obtained later than the date of conviction, though no doubt concern about outrage to the victims may reduce over time and reduce justification for any court to make such an order. I accept that the application of the confiscation provisions in the 2002 Act is uncertain but so would be the application of the present proposals in Part 7 of the Bill. Anybody who glances at Clause 145, which is filled with all kinds of limitations and restrictions, will see how unlikely and rare it will be for the court to make orders under the current Bill.
Your Lordships will know that the Joint Committee on Human Rights is concerned that an exploitation of proceeds order is in part dependent on the degree to which victims, victims' families and the general public are offended. Your Lordships will know from Clause 145(3)(f) that that is so. The court would have to go into the extent to which it thinks that the memoirs would offend the victims, the victims' families or the public in general. As the noble Baroness, Lady Stern, said at Second Reading-as, I think, did the Joint Committee on Human Rights-that leaves a
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Lord Lester of Herne Hill: I am delighted to add my name to that of the noble Lord, Lord Borrie, in opposing Clause 138. I will supplement what he has said without repeating it because I entirely agree with everything that he has said. I should declare some interests. I was amicus curiae in the Blake case, which seized the profits of his memoirs in the Court of Appeal. I am on the Joint Committee on Human Rights and I am a vice-president of English PEN. I do not know whether your Lordships will have seen a letter in today's Guardian from Lisa Appignanesi, the president of English PEN; Frances Crook, the director of the Howard League for Penal Reform; Pat Jones, the director of the Prisoners' Education Trust; and Rachel Billington of Inside Time magazine, the national newspaper for prisoners. Since they are potentially on the receiving end as people concerned with publications and free speech, it is right to tell your Lordships something of what they have said. They write:
"The law would apply to all mediums of expression, including any visual art, poetry and fiction created by former prisoners about their crimes. It would also apply to offences committed overseas. The title 'Criminal Memoirs' implies a narrow focus which is entirely misleading.
Additionally, the considerations that allow for a seizure application to be made are far too broad. One criterion is the extent to which the public is 'offended' by the payments. Such subjective criteria make for bad law that is open to abuse. Genuine attempts at rehabilitation become vulnerable to populist campaigns.
The Government assures us that the new Exploitation Proceeds Orders will be used sparingly, but the broad criteria outlined in the Bill lead us to fear otherwise. We are conscious of how Terrorism Laws have been misused in recent years, and we are deeply concerned that the new seizure orders will enable similar over-reach.
The Government did not consult widely enough on this issue. The proposals as they stand place countless rehabilitation charities in an uncertain position. We urge Ministers and Parliamentarians to revisit Part 7 ... in dialogue with those groups that share the Government's over-riding commitment to prisoner rehabilitation and integration".
I am delighted to see the noble Lord, Lord Ress-Mogg, in his place, because I think he-probably alone in the Committee, as a distinguished former newspaper editor and book collector-will reflect as we debate this on whether it is sensible to have 14 pages of the Bill devoted to this issue.
I turn next to what the Explanatory Notes say about the European Convention on Human Rights because I have the misfortune to disagree with how they are expressed. I am looking at pages 156 and 157. Paragraph 950 states:
Without boring the Committee with a lot of detail, it is perfectly clear that the provisions engage free speech. There is not the slightest doubt about that. Indeed, there is much case law on the taxing of free speech-the imposing of limits by way of costs on free speech or depriving the author of a means of exercising free speech. There are many different ways in which interference with free speech must be justified. When the Explanatory Notes suggest that it is an open question, it is not. There is no doubt whatever that these provisions implicate free speech directly. It is true that they do not ban publications in advance. That is the worst form of interference because it involves censorship. However, they deprive the author or publisher of the financial means or the profits that come from it, so free speech is undoubtedly implicated.
It is absolutely clear in the case law of the European Court and of our own courts that the right to free speech may be exercised even where the speech shocks or offends a section of the public. We all understand perfectly well that reading a gloating memoir about a heinous crime would cause huge distress to the victim or his or her family. We are not at all insensitive to the hurt that can cause, but this Bill does not deal with that narrow problem of hurt. It covers prisoners in this country, former prisoners and an enormously wide range of expressions.
Last evening I had the pleasure of entertaining eight members of a remarkable British Asian family, the Sen Gupta family. I explained what we are debating today and all of them-they comprised very intelligent people such as lawyers and doctors-said that it was ludicrous to imagine that they would be offended by reading criminal memoirs. One of them referred to Shantaram by the Australian author, Gregory David Roberts, in which he reflects on serious criminality. One lady said that reading that book had been of enormous benefit in enabling her to understand why crimes are committed and how criminals may be rehabilitated. Therefore, I am very sorry to say that I do not think this measure is in any way a proportionate response to a pressing social need.
The impact assessment of the proposal indicates that no more than two cases a year will come to court at an average annual cost of £370,000. Introducing a measure with such a potential chilling effect on free speech for such a small number of cases is a prime example of taking a sledgehammer to crack a nut. In their responses to the consultation, media groups and the Criminal Bar Association considered that the few instances of profit-making by offenders was not sufficient
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As has already been said by the noble Lord, Lord Borrie, the proceeds do not even go to the victims but to the state. Therefore, we very much hope that the Minister will indicate that the Government will reflect on this more deeply. I shall listen with particular interest and pleasure to what is said from the opposition Benches because the dilemma raised by provisions of this kind is that if politicians appear to oppose them they will be accused of being soft on crime or soft on criminals. However, I have faith in the Conservative Party as a party that believes in free speech. I look at the noble Lord, Lord Hunt of Wirral. He and I have been allies on many free speech issues in this House. Therefore, I very much hope that our combined forces may lead the Government to think again.
Baroness Stern: I am grateful to the noble Lords, Lord Borrie and Lord Lester. I am also grateful to the noble Lord, Lord Borrie, for going ahead with what he threatened to do at Second Reading; namely, to suggest that this clause should not stand part.
I began the day by reading through from Clause 138 to Clause 155, which is 14 pages of new, detailed law. I asked myself in what way it would make society better, safer or more just. It has already been made clear that the likely outcome is two actions per year, but, of course, the outcome is much wider than that because it will have a hugely dampening effect on potential writers, filmmakers and communicators who have a criminal conviction. I should be very grateful if the Minister could confirm that I have understood correctly that this applies to anyone with a conviction above a conditional discharge and not just to someone who has served a prison sentence. I hope that I have understood that correctly but I look forward to the Minister correcting me if I have not.
With these 14 pages of law, the potential writer or filmmaker enters a Kafkaesque world of doubt as they might be affected by these provisions but it will be decided on the balance of probabilities. They might be affected if they benefit from any steps taken, or to be taken. It is not clear to me how they can benefit before they have taken the steps but are perhaps just thinking about them. A person reading the measure will face difficulties in deciding whether they will contravene the law. If they are paid a fee for meeting someone to discuss a programme that is never made, does this mean that they have started taking steps? Then they have to reflect on the question of who is being offended. Which members of the general public will be offended? Eventually, the court-if the matter comes to court-must take account of the social,
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I should declare an interest as a senior research fellow at the International Centre for Prison Studies at King's College, London, which researches prisons, their nature, function and role in society. Books written by people who have been in prison constitute a huge and indispensable body of literature. On a very superficial check of my bookshelves, I noticed the following books. In 1985, Audrey Peckham wrote A Woman in Custody. She was a deputy headmistress who had a nervous breakdown and her actions led her to be convicted for incitement to murder. The book gave an insight into life in women's prisons that changed the debate and energised the reform movement. The Bird that Never Flew by Johnny Steele is described as the uncompromising autobiography of one of the most punished prisoners in the history of the penal system. It was published in 1992. This autobiography shows how a terrible childhood leads to crime, and how the system fails at every turn to take the right measures to change the person and divert them from crime, and is just as relevant today. Could he have written this book and left out the details of the crimes he committed? I do not think so.
Some noble Lords may remember Inside: One Man's Experience of Prison by John Hoskison, published in 1994. He was a professional golfer who hit and killed a cyclist while driving home, having had too much to drink. His book was a revelation of how prison seemed to someone with no experience of that world. The book was widely read and widely used as a contribution to the prison debate.
Finally, I want to mention John Williams' Silver Threads published in 1994 by BBC Books. One has to ask whether BBC Books, when confronted with such a project would have to go through 14 pages of law and hire expensive lawyers before deciding whether it would be possible to proceed. That book begins:
As noble Lords have said, there may be exceptional cases where the Proceeds of Crime Act might be used, where it can be established that there is no rehabilitative, artistic, educational or cultural merit-whatever artistic product it is-and it is gratuitously exploitative. But that would be very rare. It is overwhelmingly in the public interest and, therefore, in the interests of all victims of crime, that people with convictions should be able to write and create for their benefit and rehabilitation, and for the benefit of all those who want to learn and understand. I sincerely hope that the Government will have second thoughts about these clauses.
Lord Rees-Mogg: I should like to take up the very kind invitation of the noble Lord, Lord Lester, to join in this debate, purely from the point of view of someone with experience in newspapers. I also associate myself with the arguments put very clearly by the noble Lords, Lord Borrie and Lord Lester.
From the newspaper point of view, this is a largely obsolete problem. Newspapers do not publish the memoirs of criminals to anything like the same extent that they used to. We are talking about something that might well have been regarded as a serious issue in the early years of the previous century, when payment by a newspaper was an entirely normal way of securing sufficient funds to provide a satisfactory defence for sensational criminals. That issue arose in the Crippen case, although it appears from a report by Scotland Yard's Black Museum that Crippen may have been wrongly convicted, despite the efforts of his counsel, as the remains that were discovered on which the allegation of murder was based could not have been those of his wife, because they were those of a man.
However there were undoubtedly cases, which one associates with that celebrated counsel, Marshall-Hall, in which very large sums of money were paid by popular newspapers which went to providing satisfactory defences-which were, as regards Marshall-Hall, in some cases unexpectedly successful. I do not think that that problem really exists now. For one, there is legal aid, which means that murderers are defended anyway, and adequate or appropriate payment is made. The newspapers themselves disapprove of publishing memoirs of criminals as a practice and have largely given up trying to take advantage of even very sensational memoirs.
The clauses which we are discussing fall on the grounds that they are not necessary and that they interfere with normal and proper freedom of speech, which has often, in the case of criminal memoirs, made important points-as the noble Baroness, Lady Stern, pointed out-which have helped in the study of criminology.
Lord Lloyd of Berwick: I am very glad to follow the noble Lord, Lord Rees-Mogg, for what he said must have done much to allay the sorts of concerns that lay behind the drafting of these provisions when they were first incorporated in the Bill. I apologise for missing the opening remarks of the noble Lord, Lord Borrie, but I think that I got the gist of what he was saying.
We all agree that there is much too much legislation, particularly in the criminal field. This point has been made over and over again by successive Lord Chief Justices, and yet Governments of both sides fail to pay attention to what they say. Blackstone's, the criminal justice book which I read, gets bigger every year, and soon will become completely unmanageable. This particular part of the Bill seems to be a very good example of legislation which might have a certain attraction-or might have had a certain attraction some years ago, if the noble Lord, Lord Rees-Mogg, is right-but by no stretch of the imagination could the proposals be described as necessary.
I had grave doubts when we in this House were asked to consider the Proceeds of Crime Bill-but we did and we passed it. I have much graver doubts about
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Baroness Young of Hornsey: I speak in opposition to these clauses. I am very grateful to noble Lords who have spoken and have covered a whole range of issues and problems with the clauses. I fully support their concerns and I do not intend to repeat them.
I want to look at this issue from the point of view of what actually constitutes a memoir, and the difficulties and problems involved in assessing what that might be. I come to this from a position of knowing a great deal of work that goes on in prisons and in the criminal justice system in general with regard to arts works, which cover a whole range of activities. Does "memoir" cover dramatising lives through playwriting, screenplays, choreography, visual arts, television or literature? There are many ways of approaching the question of how you address what you have done in your life.
I should say, given my experience as an academic who has spent a long time analysing media and cultural texts, that it is very possible to disguise or smuggle in, as it were, the details of one's autobiography relating to a particular crime through a large number of methodologies or means-it could be through metaphor, analogy, satire or using animation. Are all of those areas covered? That also begs the question of the extent to which people will be available, able to analyse and to assess the cultural and education value of such work. Does it have less educational and cultural value because the work is done very simply in a particular form, or uses a lot of expletives? Does it mean more because it is written a particular style? Would that mean that "cleverer" prisoners would be deemed to have produced a work that is of more value than others? That area is highly problematic; any act of memoir is a creative act-it is not simply putting down facts.
The act of creative expression is located in its capacity to be interpreted. That brings with it a range of problems about who it will offend, and who will find it obnoxious and upsetting. A range of people can write about the most horrendous crimes in any form they want, which could be equally upsetting for those who have been affected by those horrible acts.
Finally, there is plenty of evidence that engaging in creative activities in prison helps prisoners to rehabilitate, because it encourages them to explore the self and reflect on their past, and challenges unacceptable anti-social behaviour. If that is stopped or deemed not to be a viable thing to do on the way to earning legitimate money, it would be very difficult. That is why I oppose the clause.
Baroness Miller of Chilthorne Domer: At Second Reading, I reserved the position of these Benches in order to see whether the clauses were justified. Since Second Reading, I have done my own research, and we have heard some very powerful speeches today about why the clauses are not justified or necessary and why they will have not only the chilling effect on free speech that we heard about from the noble Lord, Lord Borrie, supported by quotations from the Publishers Association and others, but also the chilling effect on the rehabilitative possibilities mentioned by the noble Baroness, Lady Stern. When the reasons are combined there is no doubt that the Government cannot justify including the clauses in the Bill.
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