Criminal Justice and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, there are parts of this Bill to be applauded and other parts, alas, to be decried. I for my part particularly welcome the new provisions that place restrictions on the use of cautions. The overuse of these in recent years has gravely weakened public confidence in the criminal justice system. I also welcome the creation of new criminal offences in respect of the ill-treatment or wilful neglect of adults in care homes, the subject of a number of well publicised cases that have deeply and understandably shocked the public.

However, I can only deplore much of what appears in Part 4 with regard to judicial review, the area of law that principally has concerned me over the past 35 years, ever since I was privileged to follow the noble and learned Lord, Lord Woolf, as Treasury Counsel in 1979, before undertaking 28 years of judicial servitude. Necessarily, at Second Reading, one must be selective in one’s focus, and I shall therefore confine myself to comparatively brief comments on four topics only—IPPs, personal injury claims, juries and, finally, the proposed new test for refusing relief in judicial review challenges.

First, on IPPs, the noble and learned Lord, Lord Lloyd of Berwick, greatly to his credit, has for some time past, as we all know, steadfastly been pursuing the cause of these luckless prisoners—and, rightly, he continues to do so. Clause 9(3) returns to the topic, albeit, as I understand it, only for the very limited purpose of extending the Secretary of State’s power under Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—that is, the power to modify the test to be applied by the Parole Board in deciding whether to release these prisoners—to IPP prisoners in the event that they have once been released and then recalled. Astonishingly, however, the Secretary of State has yet to exercise that power under Section 128, even in relation to the 773 prisoners to whom the noble and learned Lord, Lord Lloyd, referred, those who remain in prison long after their tariff sentences—often less than two years—expired, who were sentenced in the initial period after IPPs were first introduced in 2003, at a time when judges had no discretion but, instead, were under a statutory obligation to pass such sentences. In other words, this is before the 2008 modification of the regime, when it ceased to apply unless there was a tariff term of at least two years, when judicial discretion was to some extent introduced, and, of course, years before this entirely discredited form of sentence was finally abolished in 2012.

At the conclusion of the short debate on this problem back in March, the noble Lord, Lord Faulks, while noting that the Secretary of State,

“has not considered it so far appropriate to exercise the power given to him by the LASPO Act”,

recognised that:

“The sentence itself was clearly ill conceived and its impact was wholly underestimated”.—[Official Report, 27/3/14; col. 700.]

The noble and learned Lord, Lord Lloyd, must be right in saying that Section 128 was specifically enacted to enable this most egregiously ill-treated group of prisoners to be released earlier than they might otherwise hope to be. Frankly, it seems to me deplorable that to this day it has not been exercised. I can see no possible point in now extending it to the new class encompassed by Clause 9(3) if it is never going to be exercised. Surely, what this Bill should be doing is requiring a favourable exercise of the discretion. I hope that the noble and learned Lord, Lord Lloyd, will come back to that and seek to introduce it at Committee stage.

Secondly, I refer to personal injury claims. Like other noble Lords who have taken part in today’s debate, a considerable time ago I had some experience myself in this field. Clause 45 provides basically for the dismissal of personal injury claims if the claimant has been “fundamentally dishonest” in the way he has advanced the claim. For example, let us suppose that a claimant suffers a broken leg through the defendant’s negligence but, having in fact made a full recovery after six months, he nevertheless claims on the basis that years later he still cannot manage to walk 100 yards and fully expects to be disabled for life. If, as sometimes happens, he is then filmed playing football or possibly running a half-marathon, surely we would all agree that that would be clear evidence of fundamental dishonesty. It would surely be right that, instead of being awarded, say, the £5,000 that the claim might have been worth if honestly advanced, he should get nothing—unless, that is, the court thinks that he would thereby suffer substantial injustice.

For my part, in common with the noble Lord, Lord Hunt, but unlike, I fear, the noble Lords, Lord Beecham and Lord Marks, I support this provision. I find myself unpersuaded by the briefing that I suspect many of us will have received from the Association of Personal Injury Lawyers. True, it will be necessary on occasion to argue over whether the claimant’s untruthfulness or exaggerations constitute fundamental dishonesty and perhaps it will be necessary to argue whether dismissing his claim entirely would cause him substantial injustice. However, given the readiness of some these days to treat an accident as a God-given opportunity to make a fortune—“Whiplash Willie”, I seem to recall, was the name of a character played by Walter Matthau in a film some years back—this seems to be a clear steer to how judges should exercise their discretion in the matter. The modest narrowing of an existing discretion is a price worth paying for the discouragement which it is hoped this new provision will provide to those who are inclined or tempted to advance dishonest claims. Again, unlike I fear the noble Lord, Lord Beecham, I see no possible logic in suggesting that this provision should therefore be mirrored in regard to the defendant’s conduct of their defence. Surely, on analysis, there is no sensible parallel to be drawn between the opposing cases.

I turn briefly to juries. Clause 56(3), consistently with the recommendations of the Law Commission, rightly introduces a new offence of research by jurors—most typically, jurors using IT to discover, for example, whether a defendant has previous convictions. I support that. However, the Bill says nothing about research into juries, the question broached by the noble Lord, Lord Blair, in March when, as he explained today, he misunderstood the position, as indeed—he hinted at this too—did I. Section 8 of the Contempt of Court Act 1981 bars absolutely all possibility of research into juries. That is a provision with which I am very familiar given that the very reason it was introduced into the 1981 Act was that I myself had failed as counsel then acting on behalf of the Attorney-General in the prosecution of the New Statesman for contempt of court for publishing a juryman’s account of the jury’s deliberations in the Jeremy Thorpe trial. However, I knew nothing at all of any subsequent attempt to mitigate the effect of that section with regard to jury research. As the noble Lord, Lord Blair, today made plain, it seems that nobody else did either, with the possible exception of Professor Cheryl Thomas. Surely the Bill provides a perfect opportunity to correct what to many people will continue to appear to be an obstacle in the law.

I will briefly make a further point on juries. Is it not time to revisit the whole question of mode of trial for serious and complex fraud cases? The trial of such cases by a judge and two lay members chosen for their relevant expertise rather than by a jury would hugely reduce the length and cost of trials and at the same time increase the prospect of arriving at a sound verdict. Surely that, rather than drastically slashing counsel’s fees to a point at which the whole future of the criminal bar is now under grave threat, is the way to achieve economies in the criminal justice system without in any way damaging—on the contrary, it would advance—the fairness of the trial process. Indeed, that would allow more such cases to be brought to be trial, the better to deter the increasing number of those who engage in fraudulent white collar operations. That was the recommendation of the Roskill committee way back in 1986 and it was reinforced by the Auld report in 2001. The subsequent attempts to introduce this provision in Parliament are a sorry story. I suggest that we would do well to follow the course recently taken in the Defamation Act 2013, which by Section 11 provides that libel cases in future are routinely to be tried without a jury.

Finally, I turn to Part 4 of the Bill, which is the part that I regret so deeply and oppose sharply; the Government’s continuing attempt to curb the courts’ power by judicial review to supervise executive action. Regrettably, the Government have already begun to do this in the secondary legislation introduced earlier this year by substantially cutting public funding of judicial review, including, most unwisely, declining to fund leave applications unless they are successful. Now they seek to compound that by lowering the threshold for refusing permission to bring judicial review or, at the end of a hearing, for withholding any remedy—to reduce it from the existing test of inevitability to that of high likelihood.

As others have made clear, there are fundamental objections to that proposal, both in principle and as to the practicalities. So far as principle is concerned, this clause will in future require the court to reject a claim even though the decision may be deeply flawed in point of law simply because it is highly likely, although ex hypothesi not inevitable, that substantially the same decision would be arrived at, even if the matter was to be properly reconsidered and lawfully decided afresh.

Such an approach will allow public authorities to escape responsibility for their unlawful decisions. It overlooks both the central importance of honouring the rule of law and the inevitable feelings of resentment which one must feel, having been refused any remedy despite knowing that the decision taken against one was legally defective. It is worth repeating in this connection a short part of a celebrated dictum from a judgment given nearly half a century ago in the Chancery Division which is true in the context of a breach of the rules of natural justice but is equally applicable to the establishment of any other legal error in the decision-making process. The judgment in the case of John v Rees states:

“‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change”.

As to the practicalities, one simply refers, as the noble Lord, Lord Pannick, has already done, to the report of the Bingham Centre in February of this year, which expresses the senior judiciary’s view that the proposed new test,

“‘would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings’”.

The report continues:

“The proposal thus stands to elongate and complicate the permission stage, by encouraging defendants to file lengthy and detailed evidence, with consequent delay and increased cost to all parties”.

Certainly, there has been an increase in the use of judicial review over the years, but is this such a bad thing? More and more areas of our lives are controlled by public authorities. At the same time, we have become, understandably I suggest, less trusting and certainly less deferential towards those in authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today. I speak as someone who was lucky enough to be on the centre court on Friday. By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years. Alas, technology cannot be deployed to solve disputed calls in the law courts as on tennis courts, but the judges’ supervisory jurisdiction is assuredly the best safeguard that the public have against unlawful executive action and the abuse of power, and the Government most certainly ought not to be legislating to weaken it. Therefore, I join my voice to the many others who have already spoken, and those who are yet to speak, in condemning not only Clause 64 but the further provisions which the noble Lord, Lord Pannick, so powerfully analysed and criticised.

I apologise for taking so much of your Lordships’ time but, in truth, this is a Bill of the first importance and it contains a number of provisions of which we should be decidedly wary.