Victims and Courts Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 11th February 2026 Lords Chamber

[Baroness Hamwee (LD)]

The noble Lord seems to be suggesting that the Victims’ Commissioner does not now engage with individual cases. My understanding is that she very much does, but to feed towards her statutory role. That is quite different from getting involved in the minutiae of an individual case, supporting a victim or witness and promoting that individual’s interests.

[Lord Sandhurst (Con)]

My Lords, there is clearly a balance to be struck. I think we should, as we go forward, because we all have the same interests at heart here, look carefully at whether there will be occasions when the commissioner should look at individual cases, not so much to interfere but to draw on the information that can be gleaned from them and use them in setting policy. With that said, I beg leave to withdraw the amendment.

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[Lord Pannick (CB)]

My Lords, I entirely agree with what the noble and learned Lord, Lord Thomas has said. I shall add some observations. It is self-evident, as the noble Lord, Lord Sandhurst, says, that only those who are qualified and competent should be responsible for prosecutions, and no one would dispute that. However, it seems to me equally self-evident that not every criminal prosecution requires presentation by a barrister or a solicitor. There are many criminal prosecutions that others are perfectly competent to present. What matters is to ensure that whoever prosecutes in any particular case has the qualifications and experience that are necessary, and that will depend upon the nature of the case, whether it be a murder case at one extreme or a driving case at the other. I hope the Minister will be able to assure us that those factors will be, and are being, taken into account in deciding, once this reform is introduced, who prosecutes in any particular case.

[Baroness Hamwee (LD)]

The noble and learned Lord has said what I wanted to say much more sensitively and tactfully, but I will say what I was going to say.

There is a danger that lawyers of my generation— I shall just apply it to my generation and not suggest which generation other Members of the House belong to—are prejudiced against lawyers who do not have standard qualifications, if you like, or the backgrounds that many of us come from. I understand from CILEX that there are 133 members working as associate prosecutors who cannot progress or get promotion. That is a real shame. It is a much wider issue than just prosecution.

I think the noble Lord answered his own point because he was talking about members of the Bar progressing. The Minister will tell us—I cannot believe it is not the case—that no one joins the CPS and prosecutes a murder the next day. Every profession has its hierarchy, and one progresses in the hierarchy dependent on both skill and experience. The current position is out of date, so, even if it were not to solve an immediate problem, what is proposed in the Bill is a good idea. I am afraid that we cannot support the opposition to the clause.

[Baroness Levitt (Lab)]

My Lords, it is vital to ensure that the Crown Prosecution Service can recruit and retain a sufficient number of qualified Crown prosecutors. We suggest that Clause 11 supports this aim by increasing the CPS’s recruitment flexibility through the removal of an unnecessary legislative barrier. In turn, this will help increase the pool of eligible candidates for appointment as Crown prosecutors. It is axiomatic that a shortage of Crown prosecutors adds to the backlog because it cannot make decisions quite as quickly about prosecutions as it could if there were more of them.

Currently, the Crown Prosecution Service is restricted in who it can appoint as Crown prosecutors due to an unnecessary legal requirement. This is set out in the Prosecution of Offences Act 1985, which provides that Crown prosecutors and those who prosecute cases on behalf of the CPS must hold what is known as the general qualification. The general qualification is a term of art, having a very specific meaning in this context. It means that a prospective Crown prosecutor must have

“a right of audience in relation to any class of proceedings in any part of the Senior Courts, or all proceedings in county courts or magistrates’ courts”,

even though most of those rights of audience—for example, before the Court of Appeal or the Supreme Court—are never going to be exercised by a Crown prosecutor in a million years.

This requirement can exclude certain qualified legal professionals, including CILEX practitioners—from the Chartered Institute of Legal Executives—who have relevant criminal practice rights but are prohibited from becoming Crown prosecutors. These legal professionals, including CILEX practitioners, often hold the right skills and specialist qualifications required to perform the Crown prosecutor role, including having rights of audience for the courts in which they will actually appear, as opposed to rights of audience for the courts in which they will not, but they do not meet the general qualification criteria. This restriction limits the DPP’s ability to consider a wider pool of legal talent and reduces the CPS’s flexibility in managing existing and future recruitment challenges.

The purpose of this clause is to remove the requirement for the general qualification and, in doing so, give the DPP the discretion to appoint appropriately qualified legal professionals, such as CILEX practitioners, as Crown prosecutors for the CPS. I can reassure the Committee that the removal of the general qualification requirement will not in any way dilute professional standards; there are appropriate safeguards to preserve standards.

Prospective professionals eligible to be a Crown prosecutor who do not at the moment hold the general qualification must still meet the authorisation requirements of the Legal Services Act 2007—they have to be appropriately qualified, authorised and regulated, and be able to exercise rights of audience and conduct litigation, both of which are reserved legal activities under the Act. It is a criminal offence under the Act to carry out reserved legal activities unless entitled to do so.

In addition, it is important to note that the measure does not require the CPS to appoint any specific type of legal professional. Instead, it gives it the flexibility to do so where appropriate and ensures that recruitment decisions remain firmly within the DPP’s control. The DPP will retain full discretion over appointments, ensuring that only suitably qualified and experienced individuals become Crown prosecutors. Newly eligible professionals must meet the same Crown prosecutor competency standards as those who qualify through more traditional routes. I also emphasise that those appointed following this change will, like all Crown prosecutors, be subject to performance monitoring by the CPS, including case strategy quality assessments focused on the application of the Code for Crown Prosecutors.

This change reflects the modern legal services landscape, spoken to powerfully by the noble and learned Lord, Lord Thomas. Alternative routes to qualification are increasingly common, where professionals from non-traditional backgrounds play a growing role in the justice system. By removing this unnecessary legislative barrier, the clause may also support the recruitment of a diverse and representative cohort of Crown prosecutors.

I do not know whether the noble Lord, Lord Sandhurst, has ever met any CILEX practitioners; I certainly have, and they are an amazing cohort of people. I am sure he absolutely did not intend to suggest that somehow those who have qualified through an alternative route are, by very definition, less competent than those who have gone through the traditional route. If that is the suggestion, then it is not one this Government can support. I therefore hope that the Committee will join me in supporting Clause 11 to stand part of the Bill and I invite the noble Lord to withdraw his opposition to it.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, the issue of costs in private prosecutions is an extraordinarily serious one. The noble Lord, Lord Sandhurst, has spoken of the position of charities, the RSPCA being one example. One can well understand the position of a charity conducting a prosecution through a small solicitor where costs are modest. On the other hand, one must recall that for good reasons of public interest, there are private prosecutions by large corporations to protect intellectual property. The consequence of the change in the market for solicitors and barristers has produced a problem, because what the CPS pays prosecutors to prosecute is completely out of line with what a large, industrial conglomerate that wants to enforce its intellectual property rights can pay. This is a problem that has to be grappled with.

One of the reasons why the CPS cannot prosecute more than it does is the Government’s constraint; both the last Government and this one are responsible for that. There is not enough money in the system to enable the CPS to prosecute where it should be doing so. More than 10 years ago, the change in the market and the constraint on the finances of the CPS, arising out of the 2008 financial crisis, began to manifest themselves in the contrast between what happened in private prosecutions by large conglomerates, or associations of those interested to protect their economic position, and in the CPS. The courts have tried to do something about it through a number of cases, but it is an extraordinarily difficult area.

For example, in a commercial case—many of these cases go to solicitors—there did not used to be the idea that you would have to get a tender before you prosecuted, but the courts now require it. The courts have made a number of very important changes to try to bring this cost under control, because, although it cannot be shown that if you pay a large sum—several hundred thousand pounds—to defer the costs of a private prosecution it will directly come out of any bit of the overall justice budget, anyone who has had to deal with the Treasury knows that that is the case. The Treasury looks at a pot for justice and, if you take large sums out of it by paying for private prosecutions, the other part of the justice system suffers.

This is a matter that has to be grappled with, and the right people to grapple with it are the Government. It is not a very good position for judges to be in to be making these very difficult decisions because of the gross inequality between what you pay private lawyers, which many may think is far too much but that is not for me to judge, and what you pay the Crown Prosecution Service, which may not be enough—again, that is not for me to judge. The problem of what I might call public penury and private affluence is absolutely illustrated by the problem of paying for private prosecutions. It is for the Government to grapple with, and setting rates is one of the ways to do it. I think it is probably the right way, but all I am saying is we that cannot run away from this problem that has arisen because of changes in the market and the constraints on public expenditure.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord has inevitably given us a very brief tour d’horizon of the problems of the costs and charges of the legal profession getting out of hand. Looking at the Bill over the weekend, I had to turn up the 1985 Act and write into it the changes that would be made by the Bill. It seems that the one to focus on is making the provisions subject to regulations, which boils down to the Lord Chancellor setting rates—at least that is how I read it. It is not much of a stretch to think that those are going to be linked to legal aid rates, and one can see the problem.

The noble Lord, Lord Sandhurst, who explained some of the problems very clearly, mentioned consultation and rather dismissed it as being helpful, but it is important that the Committee should know what is planned by way of consultation. I hope the Minister can help us on that, because so much turns on its outcome.

[Baroness Levitt (Lab)]

My Lords, in the view of the Government, Clause 12 provides a modest enabling power for the Lord Chancellor to set through regulations the rates at which private prosecutors may recover expenses from central funds where a court has ordered that such costs be paid. To be clear at the outset, this clause does not set any rates, and it does not affect the long-established right to bring a private prosecution, which remains protected under the Prosecution of Offences Act 1985.

I should say at this stage that I have a great deal of experience in the area of private prosecutions, both as a state prosecutor working for the Crown Prosecution Service, where I oversaw all the private prosecutions that came to the CPS for consideration, and in private practice, where I brought a number of private prosecutions on behalf of clients and advised on many more.

The Justice Select Committee, in its 2020 report, Private Prosecutions: Safeguards, invited the Government to take a closer look at the private prosecution landscape, particularly where public funds are engaged. Taking an enabling power of this kind allows us to do precisely that in a careful and evidence-based way. The committee highlighted three key principles, which this Government agree should underpin reform: first, addressing the disparity between defence resources and those of private prosecutors; secondly, safeguarding the right of individuals to bring a private prosecution; and, thirdly, ensuring the proportionate and responsible use of public funds.

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[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to speak to Amendment 61. In doing a little background on this, I looked at the Law Society’s response to the MoJ call for evidence, which it produced last April. I wish to read two brief excerpts, because I think they are both particularly pertinent to what we are talking about. The first says:

“But given the increasing complexity of computational systems, computers should not be assumed to be operating correctly. Instead”—


this is important, because this is what other jurisdictions outside the UK systematically do—

“it should be evidenced and demonstrated through assurance, regular review, and disclosure of the technical standards applied by the system”.

That is what happens in Germany. That is what happens in France. That is what mostly happens in the United States.

Secondly, returning to the issue of artificial intelligence, the Law Society has been thinking about this and is clearly very worried about it. I quote again:

“Careful consideration needs to be given to emerging AI technologies that overlap with but go beyond the scope of this call for evidence. For AI, an additional layer of certification for meeting internationally recognised standards is important to ensure accountability and transparency, especially if they were designed and developed”—


which they mostly are—

“outside of the jurisdiction … Attention must be given to the ability for domestic regulation and requirements to be adhered to for computer systems and AI tools that are built outside of the jurisdiction”.

[Baroness Hamwee (LD)]

My Lords, it is six years since the noble Baroness, Lady Chakrabarti, and I were among the members of a newly formed committee that looked at—I do not think I have got the title quite right—advanced technology in the justice system. We were concerned, among other things, about the need for a human in the loop and whether it was possible to have a human in the loop. We were given very firm assurances by two Home Secretaries, which I do not think convinced the committee at all.

We were also concerned about the attitude, “X must be right because the computer says so”. Have we actually moved on from that? I do not think so. On that basis —and was it my noble friend who added facial recognition into the mix?—we support the amendment.

I am deliberately going fairly fast because I do not need to add a whole lot to what has already been said. On Amendment 62, there have been a number of occasions when I have heard a rapper and realised how very clever the work was. I really admired what I heard. Then I thought back to the occasion decades ago when my father started criticising my musical taste and calling it Simon and Godawful. Tastes change; generations move on and develop. I cannot speak to the detailed content of all rap and drill, but I think we are in danger of dismissing the importance of this music to the generation that produces it.