Courts and Tribunals Bill

Debate between Baroness Hamwee and Lord Young of Acton

Committee stage
Tuesday 10th November 2026 Lords Chamber

[Lord Young of Acton (Con)]

My Lords, in supporting Amendment 5, in my name, I declare my interest as the director of the Free Speech Union.

I agree with all those noble Lords who have spoken already and expressed reservations about Clause 1, but, if we are going to have to live with Clause 1, I want to suggest ways in which it could be improved by exempting certain classes of offences from it. My amendment would exempt from Clause 1 the removal of the right to trial by jury for those accused of speech offences that are currently triable either way.

The argument for doing this is that whether someone is guilty of one of these offences depends on where the line is drawn, and that question hinges on the meaning of words such as insulting, threatening, abusive, harassment, alarm, distress and grossly offensive, or whether something has a tendency to deprave and corrupt. There are often no hard and fast rules when it comes to understanding or interpreting the meaning of those words, and no unambiguous statutes or precedents that a judge can refer to. Instead, it comes down to a moral judgment about what is and is not socially acceptable. When it comes to making those kinds of decisions, that is properly a matter for a jury, not a judge.

That is not just my view. In Brutus v Cozens, a case heard before the House of Lords in 1973, the Lords held that the meaning of an ordinary word such as “insulting” is not a question of law. It is a question about ordinary language and ordinary standards and where the line should be drawn, and such matters are best left to juries composed of ordinary people, not experts in law.

There is another reason for maintaining the “either way” status of the particular speech offences listed in my amendment. According to research carried out by the Free Speech Union, people charged with speech offences are twice as likely to be acquitted in the Crown Court as they are in the magistrates’ court. That is to say, juries are more tolerant when it comes to what speech is or is not socially acceptable.

I will give an example. In 2024, shortly after the Southport attack, an ex-Royal Marine called Jamie Michael, who was under the false impression that the attack had been carried out by an undocumented migrant, put out a video on Facebook urging his followers to protest outside the offices of elected politicians against illegal immigration. He did not use any racial epithets and he made a point of stressing that such protests should be peaceful. A complaint was made to the police by a member of staff of a Member of the Welsh Parliament, and he was charged with stirring up racial hatred, the maximum sentence for which is seven years in prison. The Free Speech Union found him a good solicitor and barrister, he pleaded not guilty and it took a jury a grand total of 17 minutes to acquit him. Would a magistrate have acquitted him in the same way? I doubt it.

When it comes to our fundamental right to freedom of speech, which is, after all, the most important right, because without it we would not be able to defend any of the others, I urge noble Lords to continue to entrust it to 12 ordinary Britons, who have proven to be a reliable guide to where to draw the line, as they did in the Lady Chatterley trial and have done so often since.

[Baroness Hamwee (LD)]

One answer to the noble Lord is that even good cases sometimes make bad law.

I should apologise, like the noble Viscount and the noble Baroness, that I could not be here for Second Reading. I was able to watch it. My explanation or personal reference does not follow theirs, because my legal practice is very different from both of theirs. I do not know what the collective noun is for a group of those who encompass nobility, learning and a thoughtful approach. If they know what it is, perhaps they can tell me, so I can use it at a later stage. It is really helpful to have their contribution, not just on this issue but later in the Bill. The notion of guidelines is something we must rightly explore.

I am not proprietorial about my Amendment 7. I simply felt that the issue of appeals to allocation must be explored. As the Law Society put it, speed should not be the only criterion where a person

“may be convicted and sentenced to a lengthy period of custody or suffer life-changing reputational damage”.

To me, the issue of reputation is hugely important. We tend to focus on the length of a sentence, but I think any sentence carries a reputational factor. Following a short summary trial, there is a serious risk that efficiency will be perceived to have come at the expense of fairness. Magistrates, as has been said, are very used to deciding whether to send up a case, but the context and their powers will change considerably. What I am suggesting should be addressed is a mechanism for appeal.

While I remember, I will follow a couple of the speakers opposite. I do not like to say “opposite”, particularly in the case of the two noble Lords who have made points. I find it difficult to distinguish between defendants on the basis of character. It is rather like human rights. Somebody can be a really unpleasant person whom you would rather not have to help. However, their human rights are the same as everybody else’s. The amendment seeks to provide for either side, the prosecutor or the accused, with the permission of the Crown Court, to appeal against the decision, a time limit for the appeal to have, in the court’s view, a reasonable prospect of success, and for there to be criminal procedure rules. I know that the issue of the permission of the Crown Court is contentious in some people’s eyes.