Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clinton-Davis and Lord Beecham

Thursday 9th February 2012 Lords Chamber

[Lord Beecham]

My Lords, every so often a tragic incident occurs which leads to a change in social policy or, indeed, a change in legislation. One thinks of the cases of Stephen Lawrence, Jamie Bulger, Victoria Climbié and Milly Dowler and, as your Lordships may recall when we were discussing amendments in relation to alcohol and offences the other night, the murder of the husband of a Member of your Lordships' House—the noble Baroness, Lady Newlove.

This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter. This morning I have had the humbling privilege of meeting Jane’s parents—John and Penny Clough. I salute the dignity and courage with which they are not only bearing the loss of a beloved daughter in the most appalling circumstances but the way they have campaigned, with support from a wide range of individuals and organisations and across party, for a change in the law to allow an appeal against the granting of bail. I know that they would wish for an expression of thanks to be made to all those who have supported them in this campaign, in particular to Vera Baird, the former Solicitor-General, and to Members of Parliament in the other place, notably Helen Goodman and Jenny Chapman. Penny and John are sitting today below Bar in your Lordships' House. They came the other night but, unfortunately, we did not reach this amendment at that time. They have stayed on in order to see effectively the culmination not only of their pain but also of their campaign.

Irrespective of whether bail is granted in a magistrates’ court or in a higher court, there will never be any guarantee that the person granted bail will not commit an offence. However, these amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it. In approving a change in the law—I say immediately that I very much welcome the Government’s amendment and am happy to withdraw my amendment in favour of it—we should be able to demonstrate the capacity of Parliament to react to issues of this kind and to encourage others, perhaps facing different circumstances but where a change in the law might be needed, to follow the wonderful example of Jane’s parents, Penny and John, in ensuring that a change in the law is made. I said to them that if this House were given to standing ovations, they would be greeted with such an ovation today. Our hearts, our sympathies, but more particularly and perhaps more relevantly, our legislative endeavours go towards them today in meeting their objectives.

[Lord Clinton-Davis]

Is there any possibility of any action being taken after the judge has considered the point? In other words, would the prosecution be able to take the matter further?

[Lord Beecham]

I do not think that the amendment allows for that, but that is a matter that perhaps might be considered. It is adequate that the Crown Court should be able to deal with these matters.

However, leaving that technicality aside, perhaps I may, on behalf of your Lordships' House, extend our very best wishes to the whole family of Penny and John because their daughter is seeking to adopt the grandchild, and all of them deserve our best wishes and, indeed, our thanks.

I intend to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clinton-Davis and Lord Beecham

Wednesday 18th January 2012 Lords Chamber

[Lord Beecham]

My Lords, I rise to deal with the amendments in this group, one of which, Amendment 90ZZA, is in my name and that of my noble friend Lord Bach. It might be thought odd that that amendment is included in the group we are discussing, but I will deal with that later.

I wish to deal first with the amendment spoken to by my noble friend Lord Berkeley. I suppose that it can only appropriately be described as an original amendment as it relates to the Duchy. However, it raises an interesting constitutional point which needs to be explored, although, it may be thought, probably not in the context of this Bill. The noble Lord raises a legitimate concern and he is not responsible for the grouping. The matter does not fall entirely within the purview of the group that we are discussing and perhaps not of the Bill, but no doubt those matters will be addressed in some other way at an appropriate time.

I wish to touch briefly on the government amendments which are wholly uncontroversial and entirely acceptable to the Opposition. The Minister may not offer a detailed description of those amendments as they speak for themselves.

We certainly support Amendments 60 and 61, which were spoken to so ably by the noble Lord, Lord Ramsbotham. We entirely agree with him that we need clarity as to what constitutes harm for the purpose of the Bill, and in this context the loss of liberty must certainly be included. I trust that that is acceptable to the Minister. Frankly, it would be absurd if that were not the case. There is a question in my mind, and perhaps those of other noble Lords, about the precise meaning of “deliberate” in this context. Does that refer to the act of omission or commission—the substantive act—or to the fact that the consequences which are complained of were intended all along or ignored in a negligent way? It seems to me and to other noble Lords who have spoken that this amendment deals very adequately with those matters, and should be accepted.

The noble Lord who moved the amendment properly referred to immigration. In a briefing provided by Bail for Immigration Detainees, the point is made that the Bill does not define what “deliberate” or “harm” mean. It expresses concern that the ministry will seek to interpret “deliberate” as more than unlawful, and “harm” as injury, and that that would result in the exclusion of many claims for damages for unlawful intention or false imprisonment brought by individuals who lost their liberty as a result of unlawful acts by the immigration authorities or the police. In that event, it is quite unrealistic to suppose that without legal assistance such claimants could properly make their case. No doubt, the Minister will clarify the intention of the Bill in that respect.

However, these matters are not necessarily confined to immigration cases. There might well be other cases in which liberty might be lost, arrests made and people detained—for example, under the auspices of defective warrants. It may be that arrests are unlawful on the grounds that the requirements of the Police and Criminal Evidence Act were not observed, where the actions of officers were unlawful but were not thought to be deliberate. Other cases might arise out of breaches of the Data Protection Act, where a disclosure might wrongfully be made about someone who, for example, alleged that he had a criminal record when that was not the case and damage might be occasioned. Another example might be where someone in custody, either in a police station or prison, might be assaulted by someone else simply because of the negligence of those operating the facility in question. I should not imagine that the Government would seek to exclude the provision of legal aid in those cases.

Amendment 90ZZA refers to a rather different set of circumstances—in fact, an entirely different set of circumstances—that bring into play the position that might arise in the Court of Protection. On an earlier amendment, we heard the noble Lord, Lord McNally, restraining his glee at pointing out the defects in amendments moved by the noble Lord, Lord Thomas, and supported by me, on the applicability of Court of Protection proceedings. However, this amendment relates to a different case. It seeks to insert “mental or psychological” harm, in addition to physical harm, into paragraph 4 of Part 3 of Schedule 1, relating to,

“Advocacy in the proceedings in the Court of Protection”.

At the moment, legal aid would be limited to,

“a person’s right to life … a person’s liberty or physical safety”,

and some other matters. However, physical safety is not by any means the be-all and end-all, and there are clearly cases where people might be subjected to psychological or emotional harm and may require legal assistance. One can think of people with learning disabilities being abused or taunted, generally suffering as a result of the actions of others, and needing the protection of the Court of Protection—and therefore needing legal aid to pursue their remedy and obtain protection. It is fair to say that it is unlikely that there would be many cases of this kind, and therefore, as has been suggested in respect of other amendments that we have discussed, the cost would be likely to be limited. However, the Court of Protection can deal with such matters by granted orders and injunctions to protect people from harm that may amount to physical or emotional harm, in addition to the ordinary rights that would be available regarding legal aid.

[Lord Clinton-Davis]

I am concerned about the position of the Official Solicitor. Would he not be inhibited from acting at all in certain instances? Therefore, the vulnerable person concerned would be exposed to increase vulnerability.

[Lord Beecham]

That certainly must be a risk, and the need for the assistance of the Court of Protection is therefore enhanced. I am grateful to my noble friend for allowing that point to be emphasised. It is therefore essential that legal aid is available so that the court can be approached and the Official Solicitor can represent the person in question. Otherwise, he would be unable to do so because there would be no provision for costs.

I hope that despite the odd location of our amendment the Minister might look at it with some sympathy, and that if he cannot come to a conclusion on it, given that it was tabled very late, he will at least agree that he will take this matter back to look at before we reach Report.