Policing and Crime Bill

Debate between Baroness Kennedy of Shaws and Viscount Hailsham

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Viscount Hailsham (Con)]

The noble Lord ended his remarks by saying that a grave injustice is caused to those when you have publicity of the kind identified, and I entirely agree. It has been very well illustrated by what my noble friends Lord Lamont and Lord Deben said about Lord Bramall and Lord Brittan. I was Lord Brittan’s PPS in the other place and I know how deeply distressing the allegations were. That also applies to Harvey Proctor; the allegations against him were wholly grotesque and must be immensely damaging. So there really is an underlying mischief of a very serious kind. My noble friend Lord Marlesford and the noble Lord, Lord Paddick, are much to be congratulated on bringing forward these amendments.

If I may say to the noble and learned Lord, Lord Morris of Aberavon, my former pair for a short period of time in the other place, he is absolutely right—the problem will not go away. That means that we have an opportunity to address it. It is a continuing problem for this reason: usually the information is disclosed by a police officer, usually for money. That is not going to go away unless we intervene by statute. The truth always is that, if you give power to officials or opportunities to officials, on occasion they will abuse it. The noble Lord, Lord Lester of Herne Hill, rightly asked about the safeguards. Although I look forward very much to my noble friend’s contribution from the Front Bench, I do not think for one moment that there are effective safeguards outside statute.

I turn briefly to the amendment proposed by my noble friend Lord Marlesford, Amendment 182. I agree with one part of it very robustly. His is much more far-reaching than is the amendment proposed by the noble Lord, Lord Paddick, because it applies to all offences—and I think that he is right about that. Allegations of fraud can achieve very high publicity and be immensely damaging, so I have a great deal of sympathy with the scope of Amendment 182. Where I have greater doubt is with two other parts of the amendment. With respect to the accused person, there is no provision for him or her to consent to publicity as there is in the amendment proposed by the noble Lord. Secondly, I am uncomfortable about the concept of the magistrates’ court being the court in which representations as to public interest are to be determined. I am in favour very much of what the noble Lord says with regard to the judge of the Crown Court.

The noble Lord, Lord Pannick, is a much more distinguished lawyer than I am ever going to be, but there are two points that I would make. First, he says that there may be occasions when an accused person will not be charged because witnesses will not come forward, absent publicity. There is truth in that, but then you have to look at the proportionality of the whole. Yes, there may be one or two such cases, but for an awful lot of cases great injustice will be done to people against whom allegations are made that are wholly unfounded. Finally, the noble Lord suggests that the judges in chambers will not be able to assess and determine the relevant arguments and whether there is a public interest in disclosure. There may be some force in that, but I think not much at the end of the day, because judges in chambers and Crown Court judges are pretty experienced about this sort of thing. They will have to consider quite frequently public interest immunity certificates which have very broad quality concerns attached to them. So in applying the principle of proportionality, the argument advanced by the noble Lord, Lord Pannick, is wrong in that respect. I make one rider: I hope that the rules of the court which will doubtless be introduced if the amendment is passed will make provision for the person against whom the allegations are made to have the opportunity to make representations to the Crown Court judge.

With respect to my noble friend Lord Marlesford, I shall not support his amendment, should he seek your Lordships’ opinion—but, unless my noble friend Lady Williams surprises me with her argumentation, I shall support the amendment proposed by the noble Lord, Lord Paddick.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am glad I arrived in time to hear my noble friend Lord Campbell-Savours praying me in aid of this amendment, because I do indeed support it. That may surprise many people, because I am ardently an exponent of justice for women and keen to see that the system is alert to the ways in which women often are failed by it. I have written about this for all my professional life of 40 years in the courts. I take this position and I have not changed, my noble friend will be happy to know.

At the time, back in 2003, the point that I was making in opposing Lord Ackner’s amendment was that Lord Ackner was taking issue with the fact that women got anonymity so why should not poor men charged with rape get anonymity? He suggested having equality. It was an argument that was, I am afraid, familiar to me from old judges: “You want equality, Ms Kennedy, we will give you equality”. It did not take account of the fact that the lives of women in society are so often different from those of men. With rape, particularly, women often just could not face coming before the courts to testify against the person who had raped and violated them. I do not have to rehearse in this House the whole baggage around rape: we know why women have been handicapped in coming forward and why the statistics are so low. We know the difficulty of dealing with things that happen in private, but we also know the ways in which women’s whole lives would be affected by the sense of dishonour attached to rape, and for many women this is still the case. Many more women are becoming brave and saying they do not need anonymity but it was given to women in the 1970s to try to redress the balance of law’s historical failure. It recognised something that I want to say very slowly to this House: treating as equal those who are not equal does not create equality.

We do justice by looking beyond the courtroom doors and knowing what really goes on in society. For that reason, we introduced anonymity into the system when that flew in the face of principle. We do not want anonymity in our courts. We want people to stand there and accuse, to face their accuser and to hear what the evidence is. We want justice to be open and for the public to hear it. But the decision was made to give anonymity to women to encourage them to come forward when these terrible events had happened to them. Lord Ackner advocated—and he found some friends in the House—that we had equality in 2003 and should treat everybody equally. But if we had equality, we would not still be hearing women arguing for equal pay and about domestic violence and violence towards women.

You cannot give total anonymity to an accused all the way through a trial because we know that there are cases where people come forward at the right point and say, “This happened to me, too”. If the Savile case and others have taught us anything it is precisely that. However, you do not solve one injustice by visiting another injustice on people. That is why I feel very strongly that the police should not disclose names until the point of charging. We have here a rather unpleasant alchemy of the police and media coming together. I have worked on many cases where a tip-off was given by police to the press who were then standing outside the police station to photograph people as they exited. It never comes to a charge, but the accusation has already been made. Why does that happen, you may ask yourself? In the old days it used to be because the police officer had been promised a drink or a case of whisky would be sent round at Christmas from the local newspaper or a more major national one. I am afraid it could take even more unpleasant forms than the drink at Christmas.

I remind the House that not long ago a woman called Rebekah Brooks—then Rebekah Wade—gave evidence to a Select Committee about the amount of money paid by her newspaper to police officers for precisely the kind of information we have been talking about, which blights people’s lives. From Cliff Richard to Paul Gambaccini, a whole set of people have suffered the consequences of this kind of publicity. The strength of this amendment is that it is not saying that the door is closed. Many women are assisted by the fact that other women will ultimately come forward because they hear that a charge has at last been brought against somebody. They are not standing alone and then they have courage. However, you also have to prevent other injustices. That is why you protect people by giving them the cover of anonymity until the point of charging. Then, and only then, should a name be put into the public domain.

How do we deal with police misbehaviour? I know there are noble Lords who do not think the police ever misbehave: they do. Happily, it does not happen as often as many people think but it is too often and police misbehaviour is behind most of this kind of publicity. If the standing order is not working and the principles are not being adhered to, how can you give teeth to preventing police officers doing this? The only way is if they face sacking or prosecution if they are discovered to have interfered with due process. We must have stronger responses to police misbehaviour of this kind.