Crime and Policing Bill

Debate between Lord Faulks and Lord Hogan-Howe

Report stage
Wednesday 11th March 2026 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, my name is on the series of amendments that the noble Lord, Lord Pannick, has spoken to, and I will make a few brief comments in support of them. Before I do, I shall make a few observations about Amendment 394. The noble Lord, Lord Davies, has not yet spoken to it, and he may be able to answer all the points I will make.

I start by saying that I share—with all noble Lords, I think—concern and admiration for the police generally, particularly for police officers who undertake willingly the task of bearing arms on our behalf in circumstances that may conceivably lead to serious harm to them and which call for difficult judgments to be made, often on very little information and in a split second. I entirely understand the concern.

I also wonder whether all these amendments are not significantly inspired by the Chris Kaba case and the officer, Martyn Blake. As to the decision not to grant him anonymity, it is very arguable that the judge came to the wrong decision. But, of course, we must bear in mind that hard cases make bad law and that there is a danger that, from one case, we then proceed to legislate in a way that overreacts and makes a change which is not really justified.

I will deal with Amendment 394, on presumption against prosecution. I am concerned about this. The idea of a presumption against prosecution does not find its way into the criminal law very often. I was able to find only one, the much-criticised Overseas Operations (Service Personnel and Veterans) Act 2021, where the then Conservative Government brought in a limit to the prosecution—a legal threshold in relation to overseas acts by serving forces rather than police officers. In certain exceptional circumstances there would be a presumption against there being a prosecution after five years. That was much criticised. What I struggle with in this amendment is that, before any prosecution is brought—the Minister will know this better than anyone, really, in your Lordships’ House—there has to be a consideration of whether there is sufficient evidence to prosecute, and, secondly, whether it is in the public interest to prosecute.

The factors referred to in this amendment, for example, in proposed new subsection (5)—

“In making a decision to which this section applies, a relevant prosecutor must give particular weight to the following matters … the exceptional demands and stresses to which authorised firearms officers are subjected to in the course of their duties, and … the exceptional difficulties of making time-sensitive judgments”—


are absolutely right, but I respectfully say that those are the very considerations that would be taken into account by the prosecution in the ordinary course of affairs when deciding whether there is sufficient evidence and deciding whether it is in the public interest to prosecute. This would put into the criminal law a presumption that does not have a satisfactory precedent and place officers in a particular position. I feel we must leave it to the prosecutors to take all these matters into account in deciding whether it is appropriate to prosecute.

I should perhaps declare an interest, in that I was a barrister who acted on behalf of the police in one of those few cases where an officer did, in fact, unfortunately, kill a suspected criminal. The case went all the way to the House of Lords. It is called Ashley v Chief Constable of Sussex Police. Ashley’s relatives were represented by Sir Keir Starmer, as he was not then, whose junior was the noble and learned Lord, Lord Hermer, as he was not then. The argument involved very much the same issues that we have discussed this evening about objective and subjective mistakes. A very junior officer, as part of the armed response unit, thought he had seen a sudden movement. He opened fire and unfortunately killed Mr Ashley. He was prosecuted for murder and acquitted, because it was a mistake. Civil proceedings followed in due course. It was difficult, but he clearly made a mistake and the jury had no difficulty in acquitting him.

That brings me to the amendment suggested by the noble Lord, Lord Carter. I understand what has been said over the years in relation to those matters, but they are very much taken into consideration by juries in any event. Self-defence would include all those matters, or the urgency of the situation. Although I will listen carefully to what the noble Baroness has to say, I am not at the moment convinced that we need to change the law.

I said that I do not like presumptions in the context of the criminal law. I do not like presumptions much anyway, which brings me to the amendments in the name of the noble Lord, Lord Pannick. What worries me about the presumption is: what rebuts that presumption? At the moment, the law provides that a judge decides in the particular circumstances whether it is appropriate to grant anonymity, and he or she will take into account all the factors, including the risk of danger to the officer if he or she is named, which is entirely proper. But this presumption would, I respectfully suggest, mean that the judge would be getting a very strong steer from Parliament that he should grant anonymity unless—and we do not really know what the “unless” is.

Granting anonymity runs contrary to the principle of open justice. Although one has considerable sympathy for any officer caught up in the situation, nobody is above the law, whether they are officers or not.

The press has a duty to report cases, particularly cases of this sort, where serious consequences have followed from the action of the state. We know that journalists are thinner on the ground than they once were and often have to cover different courts. I speak with some experience as the chairman of the press regulation body and knowing the pressures that journalists are under. They themselves often have to make representations to judges, in all sorts of circumstances, as to whether there should be an anonymity order or not. They might be faced with having to persuade a judge who has already been told that there is a presumption of anonymity. That is a hard burden to discharge for a journalist who may or may not have some legal representation. As a result, it seems to me almost inevitable that all officers will be granted anonymity.

If that is what Parliament thinks is appropriate, so be it, but let us not delude ourselves into thinking that presumption will mean anything other than automatic anonymity in these circumstances. I think this is a step that should not be taken. Although all these amendments concern a very real issue and concern, open justice and fairness to all seem to me to point to the result that the amendments from the noble Lord, Lord Pannick, should be accepted and the other amendments rejected.

[Lord Hogan-Howe (CB)]

Before the noble Lord sits down, could he just consider one thing? He made some very strong points. One thing that concerns the officers—although the noble Lord is quite right to identify that there have been relatively few criminal charges over the period—and the reason they are not persuaded by the CPS, or whoever is making the decision, taking into account only sufficiency of evidence and public interest, is that on every occasion the CPS has brought a criminal charge, the jury has disagreed with it. It leads you to wonder what led to that decision-making process, because all the points the noble Lord made about all that is considered do not survive the test of a jury when it arrives.

That is why there is this concern. I am with the noble Lord, Lord Faulks. Is this the perfect solution? I am not a lawyer and not in a position to judge whether it is the best solution, but it is why this question is raised so frequently—not because of the frequency of the cases but of how often they have been cleared in a very short time after all the careful consideration by very good lawyers who come to a completely different judgment from that offered by a jury.

Crime and Policing Bill

Debate between Lord Faulks and Lord Hogan-Howe

Report stage
Monday 9th March 2026 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, this group of amendments was due to be heard last Wednesday. We were sent away just before midnight but reassured that they would be heard first thing on Monday. Well, it is 9.30 pm; I suppose that is first thing.

Amendment 377 is an important amendment, supported by the noble Lords, Lord Godson, Lord Hogan-Howe and Lord Davies. It is about lawful or reasonable excuse for public order offences. It is not particularly easy for a legislature to say what could constitute a reasonable excuse. However, the law is currently in a mess. The culprit is the Ziegler case, in which the Supreme Court, by a majority, said that whatever Parliament might say, it was necessary for a court to decide for itself, using the vexed issue of proportionality as a separate assessment, it would seem. Paragraph 59 of the leading judgment describes the process of proportionality as a

“fact-specific inquiry which requires the evaluation of the circumstances in the individual case”.

There has been widespread criticism of the Ziegler case. The courts have been backing away from it—for example, the Colston statue case in the Court of Appeal and last week in two cases, R v ABJ and R v BDN. Policy Exchange, the think tank, has mounted a long-standing campaign against the incoherence that the Ziegler decision has generated. There is absolutely no reason, from Strasbourg’s point of view, why national Governments should not decide on the sensible and appropriate limits on the law in relation to protest. Many noble Lords will remember the 2023 legislation and the provisions concerning tunnelling, major obstruction to transport networks and interfering with key national infrastructure. I was always concerned that superimposing on all these very specific offences the defence of lawful or reasonable excuse without giving any definition was, in effect, simply asking courts, “Do you think that there was a reasonable excuse?” but not saying how they were to approach that issue. I tabled amendments, together with the noble and learned Lord, Lord Hope, without success, to clarify the issue so that courts could know what questions they should ask of themselves other than whether they liked the protest.

During the debate on this provision in Committee, no noble Lord from any party seemed to agree with the Ziegler decision or seek to defend it. The noble Lord, Lord Marks, seemed to dislike the amendment on one particular ground—that it purported to oust the jurisdiction of the European Court of Human Rights. I understand his loyalty towards the European Court of Human Rights, but the amendment does not seek to do that. It seeks to confirm that, in our view—I think that it is pretty uncontroversial—this amendment complies with the European Convention on Human Rights. It respects a balance of the various rights, and the House will know only too well that Articles 10 and 11 are qualified rights. It is clearly important that the law in relation to protests should take into account not only the rights of protesters but those of all those parties whose lives could be completely upset by the exercise of those rights and, of course, the police, who have to interpret the law and administrate the law, so coherence is most important.

I then looked again at what the noble Lord, Lord Hanson, had to say in response to this group. I want to be fair to the noble Lord, Lord Hanson, who has been indefatigable in the course of this Bill, dealing with any number of amendments, and often with large groups. I do not blame him altogether for not seizing on the Ziegler point with any great detail, but I fear that his answer was simply not good enough. He merely said

“the Government are not persuaded that this amendment is needed. Public order offences have been developed to ensure that those reasonable excuse defences apply only when appropriate and respect the need to balance”,—[Official Report, Commons, 13/1/26; col. 1634.]

et cetera. It was a perfectly fair statement of what the aims of any Government are but not an answer to the inadequacy of the Ziegler case. Therefore, I ask the Minister directly—sorry, it is not going to be the noble Lord, Lord Hanson, replying, as he is getting a well-earned rest, but the noble Lord, Lord Katz—whether he says, on behalf of the Government, that the Ziegler decision was correct, or does he accept, like almost any other legal commentator, that the decision was unfortunately wrong, as other judges seem now to accept? If that is the case, the law is incoherent, and it must be changed.

I fear I must join my noble friend Lord Pannick and the noble and learned Lord, Lord Goldsmith, who is not currently in his place, in saying that it is simply not good enough to say that we must wait until the noble Lord, Lord Macdonald, speaks on the subject—if he were to speak on the subject, because, of course, that may be some time in the future. Then there is the vexed question of legislative time.

We need to sort out the law in relation to protest. This amendment, whose drafting has not been criticised in any way, states what could or should constitute a reasonable excuse or lawful excuse. The time has come to clarify the law for everybody’s sake. I beg to move.

[Lord Hogan-Howe (CB)]

My Lords, I have added my name to my noble friend Lord Faulks’ amendment and I support it. To repeat a point I made on an earlier amendment, the police generally need simplicity, not complexity. Generally, Ziegler created complexity in what, in that case, was the simplest of offences. It was all about wilful obstruction of the highway. That used to be fairly straightforward. It was on a highway; it got obstructed and it was done wilfully: that was the offence. That is all that had to be proved. Of course, it is used not only in cases of protest, but Ziegler said that, in the case of protesters blocking the highway, that simple test could not be applied; it had to consider further issues. In fact, what it said was that the person could be convicted of obstructing the highway only if the prosecution could persuade the court that a conviction would be a proportionate interference in his or her convention rights, which, in effect, shifted it for the police to prove proportionality when someone was blocking the highway.

My point is that, although we understand the intellectual background to that, it has left the law in such a confused position that the cops do not know whether to enforce it at the moment of the crime. That is never a good position to be in. There is a secondary issue, which is that senior officers often become involved in planning for marches that are to happen in the next week or two weeks. They probably have a little bit more time to consider these issues, but frankly, the police have always used discretion. People block the highway fairly regularly; we all do. If you stop in your car, if you are walking on the highway, you can block it, so they do not arrest everybody who blocks the highway. They do not arrest every protester who is walking on the highway and clearly is obstructing it. That is what marchers do; it happens all the time. Of course, it becomes a bit tricky when a group within the protest decides to sit down in the middle of Oxford Circus and want to stay there for some time. That, I think we might all accept, is unreasonable. The police will try to persuade them. At some point, they might want to intervene and say, “Actually, I think you need to move or, alternatively, you are going to get arrested. There is a consequence to what you are doing. That’s your right, but there will be a consequence”.

I am afraid this judgment has left the police really confused. This is about obstruction of the highway, but it applies to all the different aspects of public order law. I do not think that it is fair to ask the police to start balancing human rights on the street. Of course, there is the issue of reasonableness, which is where discretion comes in—they are not going to arrest everybody and should exercise their powers only if somebody refuses to move or repeatedly causes an aggravation to the simple offence—but the danger of this judgment is that the law is confused and the police are caught in the middle. This amendment is an opportunity to clarify it. I think that is reasonable and I support it.

Crime and Policing Bill

Debate between Lord Faulks and Lord Hogan-Howe

Committee stage
Thursday 22nd January 2026 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I share with the noble Lord, Lord Carter, concern and admiration for our firearms officers and officers generally, who have a very difficult job. I declare an interest having acted for police forces in cases involving the use of firearms. However, I do not share his conclusions about these provisions.

I should also declare an interest as the chairman of the Independent Press Standards Organisation, which regulates the press or those bodies that choose to be regulated by it. I hope that has given me some indication of some of the challenges that journalists face, particularly in reporting court proceedings. Very often, they struggle to cover court cases because of the reduced number of journalists and the general facilities available to newspapers. Were this provision to become law, they would be faced with a presumption that changes the balance and represents, on the face of it, a challenge to our principles of open justice.

Given that there is already a discretion available to the courts on anonymity, I ask the Minister this: what is wrong with the existing law, which provides that there is such a balance to be exercised by the judge? If there is nothing wrong with the law, there is no need to change it. This is a significant change, and the Government must have some very clear thoughts as to why they are making it. What is the situation that now persists which requires a fundamental change in questions of reporting and free speech?

Supposing it is possible to persuade a judge to rebut the presumption which will now exist in these provisions, what would be a good reason for lifting the anonymity which prima facie is going to be imposed by them? It is important, before we make such a significant change in the law, that the rationale is clearly understood.

While not in any way undermining or questioning the importance of protecting officers in appropriate circumstances, I say that the balance is a very subtle one, and that balance should not be disturbed by these provisions. I do not think we even need to consider the European Court of Human Rights’ position. This is an ancient tradition of open justice, and it is one which is, I am afraid to say, threatened by these provisions.

[Lord Hogan-Howe (CB)]

My Lords, I oppose the stand part notices and support the Government in their clauses. I have heard the proposers of the stand part notices make much of what is a relatively weak argument, suggesting that this is a constitutional outrage, when all that is happening is a change in the assumption about anonymity. Anonymity is already available; this is just about who has to prove whether it should be granted. A lot of hyperbole has been used about this. I accept that the media will make this argument; I do not deny that. I agree that the police should be held accountable; that is not the issue. It is about a very small group of people. I will try to address the point about evidence. A point was made about what evidence had been advanced; I will try to address at least two things.

First, of course, this was built on the Chris Kaba case. Frankly, I think the judge made the wrong decision about anonymity. I believe that because Mr Kaba was arrested having been connected to two shootings and linked to an organised crime gang who had access to firearms. Naming the officer put him at risk of attacks by connected people. Bear in mind that, three years later, within three hours a jury found him not guilty. It was never a very strong case, but why did the judge order the anonymity order to be lifted in those circumstances?