Policing and Crime Bill

Lord Faulks Excerpts

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

[Lord Faulks (Con)]

My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority.

Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so.

In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases.

Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.

I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.

A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.

The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.

I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.

Under this amendment a judge is entitled to say that he is,

“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,

and to,

“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.

The amendment further states:

“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.

I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.

It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.