Criminal Jurors

Debate between Lord Bellamy and Lord Faulks

Wednesday 6th March 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, in financial crime, the ultimate question is, normally, whether the defendants have acted honestly or not. Experience suggests—and my own experience suggests—that jurors are perfectly capable of determining whether someone has acted honestly or not, despite the financial complexity of some of these trials.

[Lord Faulks (Non-Afl)]

My Lords, we are all extremely grateful for the task that jurors perform extremely conscientiously, but there is a very significant backlog in the Crown Courts at the moment of people awaiting trial by jury. Have the Government considered the possibility of allowing a defendant to elect to be tried either by a judge—or by a judge and two magistrates—if he or she wants to do so? Further to what the noble Lord, Lord Watts, asked, is it not the case that, as long ago as about 50 years ago, Lord Roskill recommended the possibility of trial by judge alone in difficult and complex financial cases? Is that a matter that the Government are thinking about further?

[Lord Bellamy (Con)]

To the last part of that question, as I have just said, the Government are extremely reluctant to qualify in any way the right of all citizens to be tried by a peer group of 12 good and true, whatever their background or walk of life, so the answer to the Roskill suggestion is no. As to the possibility of the option of being tried by a jury, a judge alone or a judge and two assessors, for example, that is not in contemplation by this Government for the same reason.

European Court of Human Rights: Rule 39

Debate between Lord Bellamy and Lord Faulks

Tuesday 6th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, on the first aspect, if I may speak on behalf of the United Kingdom and all Governments, the Government have a commendable record on interim measures. I fully agree that you cannot judge the underlying legal and practical questions by just one case. On the issue of the Bill of Rights Bill, I think the focus should now be on Clause 53 of the Illegal Migration Bill, which I am sure we will discuss in great detail in Committee.

[Lord Faulks (Non-Afl)]

My Lords, it is most important that we maintain a good relationship with the European Court of Human Rights. The context of this Question follows the decision of the judges in this jurisdiction about the flights to Rwanda. An anonymous judge then gave a ruling that, on the face of it, was not entirely compliant with natural justice. However, is it not right to say that the Home Secretary entirely accepted that ruling? There was no question of ignoring it. The Government have proceeded by trying to improve the process in a way that is more satisfactory and complies with most people’s notions of how interim relief ought to be obtained.

[Lord Bellamy (Con)]

My Lords, I respectfully agree with the comments of the noble Lord, Lord Faulks.

National Security Bill

Debate between Lord Bellamy and Lord Faulks

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

Before the Minister answers, and so that he does not have to go over old ground, I will intervene. In the Government’s case, the judges will have a new power that is needed because the existing defences of ex turpi and volenti are not adequate. I think that is the case the Government are making, but I respectfully submit that a judge needs a bit of help as to how he or she is to approach this case. When judges are given discretionary powers—for example, under the Limitation Act—they are given a long list of things to take into account or something that makes their job easier. I am putting myself in the position of a hypothetical judge looking at this clause, knowing that it apparently adds something to the existing common law and asking myself how I would approach this. I wonder whether there might be reflection and a judge will be given more guidance as to how he or she should approach this very difficult and delicate task.

[Lord Bellamy (Con)]

My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.

I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.

Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.

To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.

The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.

That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.

That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.

For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.

[Lord Bellamy (Con)]

My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.

[Lord Faulks (Non-Afl)]

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

[Lord Hope of Craighead (CB)]

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

Bill of Rights

Debate between Lord Bellamy and Lord Faulks

Thursday 23rd June 2022 Lords Chamber

[Lord Bellamy (Con)]

I thank the noble Baroness for that question, which will require further and detailed thought as we go along. The essential purpose of this part of the Bill and the provisions to which the noble Baroness refers is to incorporate into legislation the test recently enunciated in the Supreme Court by the noble and learned Lord, Lord Reed. He said essentially that the UK courts should not go further than the Strasbourg court under human rights legislation unless they are satisfied that the Strasbourg court would. This is not intended to do any more than incorporate in statutory form what the Supreme Court has already said.

[Lord Faulks (Non-Afl)]

My Lords, I welcome the noble and learned Lord to his place and congratulate him on his appointment. I declare an interest as having been one of the members of the Commission on a Bill of Rights, which the coalition Government set up. The majority, which included the late Lord Lester, concluded that there should be a British Bill of Rights. It has now been nearly 25 years since the Human Rights Act. I do not think there was any pre-legislative scrutiny of that Act, nor was there a Green Paper or a White Paper. I respectfully agree with the Government that it is time to look again at how the Human Rights Act has worked in practice, so I welcome this opportunity. We will no doubt scrutinise carefully what is in the Bill and whether it makes an improvement.

I welcome the emphasis on freedom of speech—I declare an interest as the chair of the Independent Press Standards Organisation—in particular the protection of the disclosure of journalists’ sources, which I ask the noble and learned Lord to comment on. Could he help me at all in what way they will be further and better protected, or may be, by this Bill, while entirely applauding what lies behind those clauses?

[Lord Bellamy (Con)]

I thank the noble Lord for his comments, with which I respectfully and very largely agree. Freedom of speech is, of course, a keystone of our constitution. That is what the Act is intended to reinforce. On journalistic sources, the Bill’s wording is intended to make it plain that when a balance has to be struck, as it occasionally does, on revealing journalistic sources, then “great”—I think that is the word— but predominant weight is given to the protection of journalism, which is so essential to free speech in our society.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, is it not right, in fact, that we will gain a great deal by still looking at decisions of the European Court of Human Rights in the future, but that we should also look at other courts in other jurisdictions? There has perhaps been a danger of the common law developing since the Human Rights Act based almost exclusively on Strasbourg jurisprudence, while there is wisdom elsewhere in the world as well.

[Lord Bellamy (Con)]

I respectfully and fully agree with my noble friend; there are many other sources. The Canadian charter of rights is a prime example of what he says. Having worked personally in both the civil system and a common-law system in other lives, no one is more convinced than I am of the strengths of the common law on which we should draw for our freedoms.