Criminal Finances Bill

Debate between Lord Faulks and Lord Phillips of Worth Matravers

Committee: 1st sitting (Hansard): House of Lords
Tuesday 28th March 2017 Lords Chamber

[Lord Phillips of Worth Matravers]

My Lords, I support this amendment. I suggest that whistleblowers need to be both protected and rewarded in order to encourage them. The Mauritian legislation of which I spoke earlier makes provision for rewards to be paid to whistleblowers whose information leads to the confiscation of unexplained wealth. Indeed, the board that I chair has the function of making such awards. In my view this is a salutary provision as one of the weapons in the fight against crime and corruption. Therefore, I support in principle this amendment, but as a starting point because I suggest that it is a principle that should be applied much more widely in the case of action taken that leads to the recovery of the proceeds of crime.

[Lord Faulks]

My Lords, I am sure the whole House shares the concern that the noble Baroness has expressed about whistleblowing and its importance generally. However, I respectfully submit that this amendment is a pretty substantial response to that. It seeks to set up a whole department—the office of the whistleblower. I accept that this is something of a probing amendment and therefore bears the standard for what the noble Baroness may hope to come, but it is little short of a job-creation scheme. The proposed functions of the office of the whistleblower are extensive and it would have powers. Of course, if an office is created, those who are given that office will appoint others to work for them and powers will be exercised. If they are not exercised it would be suggested that they were not doing their job. Before we know where we are, we will have a substantial bureaucracy that runs the risk of having the same problems that exist in other areas of bureaucratic supervision of financial institutions.

The question of incentives is interesting. I accept that that they have had some success in the United States and, as we heard from the noble and learned Lord, in Mauritius too. But as to the question of “retaliatory action against whistleblowers”, a whistleblower has remedies in civil law in any event. When she comes to respond to the Minister, will the noble Baroness give us some idea what is meant by the provision with regard to “retaliatory action against whistleblowers”? The criminal law exists and civil remedies exist for employees and I wonder whether that is not inviting something rather too much. Of course, she rightly acknowledges that whistleblowers are not entirely based in the financial institutions; they exist in the NHS and have recently been considered by Sir Robert Francis and in all other government departments.

The real question is whether the establishment of this no doubt expensive bureaucracy will deter and whether it will result in the detection of what would otherwise not have been detected. While I applaud the general thrust of the amendment, I wonder whether it is something of an overreaction.

Prison Reform

Debate between Lord Faulks and Lord Phillips of Worth Matravers

Tuesday 15th March 2016 Lords Chamber

[Lord Faulks]

My noble friend is quite right to focus on the importance of family. According to research by my department, families are the single most important factor in helping prisoners to resettle on release. A number of prisons have developed visitor centres and are doing their best to make the contact between families and prisoners as pleasant as possible. This is important because, first, the families are, after all, not doing a prison sentence and, secondly, it encourages prisoners to remember that their roots in the community and in their family are the key to not reoffending.

[Lord Phillips of Worth Matravers (CB)]

My Lords, the Minister has recognised that we cannot hope to tackle prison overcrowding without improving rehabilitation and thereby reducing reoffending. But is it not the fact that we cannot hope to improve rehabilitation without reducing prison numbers? Can the Minister tell us how the Government will break this vicious circle?

[Lord Faulks]

The noble and learned Lord, with all his experience of the system, will appreciate that we have a duty, and therefore have to have the ability, to house all who are sent to prison by judges. What we are endeavouring to do is to identify the causes of reoffending. Once we have done that, we hope that that will reduce the numbers. If judges feel it is appropriate to sentence offenders to particular sentences, it is not for the Government to reduce those sentences simply to make the figures balance.

Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Debate between Lord Faulks and Lord Phillips of Worth Matravers

Wednesday 14th October 2015 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, in the days when one was allowed to use Latin in court, counsel and judges sometimes delighted in the phrase res ipsa loquitur: the facts speak for themselves, or, the answer is obvious. For the reasons given by every single person who has spoken thus far in this debate, that phrase applies to the Motion. I shall not repeat the reasons, but I shall support the Motion if I have the opportunity.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I thank all noble, and noble and learned, Lords who have spoken in this debate, in which, although it was short, strong feelings have been expressed and cogent arguments advanced about the criminal courts charge. The Secretary of State for Justice has developed a reputation—referred to by the noble and learned Lord, Lord Woolf—for listening to the arguments and approaching with boldness and imagination the often difficult challenges that justice and paying for the cost of justice present. Although I cannot promise the House an immediate review of this matter, I can promise that all the speeches made today will be carefully heeded by the Secretary of State for Justice. He will be considering them extremely carefully.

Let me deal with some of the points that have been made, succinctly but powerfully. First, on judicial discretion, this was one of the arguments that came before both Houses when the Bill was going through Parliament. Indeed, I was the Minister who took the relevant clauses through. The argument—except from the noble Lord, Lord Ponsonby—was not that there are no circumstances in which it is appropriate for a defendant to pay the costs of their appearance in court, but that there should be some discretion. The Government believe that convicted adult offenders should take responsibility and contribute towards the costs they impose. If they do not, of course, the cost is paid by the taxpayer. The criminal courts charge is intended to ensure that offenders take a greater share of the burden, currently borne by taxpayers, of funding the criminal courts.

Imposition of the charge is purely about recovering costs. It is not a punishment and therefore should not be treated as part of the offender’s punishment in any way. Therefore, it would not be appropriate for a discretion to be exercised. The noble Lord, Lord Ponsonby—parting company from a number of other noble Lords—said that he did not accept that any cost should be imposed on a defendant for appearing in court. One of the reasons he gave was that in some way, it would be rather invidious, because a judge or magistrate might be perceived as having some form of financial interest in the outcome of a case. Although I think the noble Lord accepted that that would not be much of a factor in reality, he was in a sense making an important point: that judges and magistrates should not be able to choose whether to charge for the use of a court, as it were, and that it would therefore not be appropriate for there to be a discretion.

I understand entirely that it is most important that the courts charge framework means that offenders are given a fair and realistic opportunity to pay the charge. Although a court does not have discretion in terms of the charge itself, it does have discretion to consider an offender’s means and set payment terms at affordable rates. Offenders will be able to contact a fines officer at any point to request variations in payment rates if their circumstances change. At such points the courts and fines officer will have an opportunity to take existing debts into account, making sure that repayment is reasonable and affordable, given the offender’s individual circumstances.

The criminal courts charge legislation also gives the offender the opportunity to have the charge remitted after two years where the offender takes all reasonable steps to pay it and does not reoffend. It will be for the courts to decide whether all reasonable steps have been taken, having regard to the offender’s personal circumstances. Here matters such as unemployment, interruptions to benefits payments or poor health can be taken into account.

Noble Lords were concerned about the possibility of there being an inducement to plead guilty. Of course, that is a highly relevant consideration. Defendants facing trial are not required to pay the criminal courts charge; they will be subject to the charge only if they are convicted following a hearing, or of course if they plead guilty. It is always a delicate matter whether defendants plead guilty to an offence of whatever seriousness. The noble Lord, Lord Beecham, and others have acknowledged the fact that it is well known that a discount—often of a third—will be given to a defendant who pleads guilty, and it will depend on the precise juncture at which that defendant pleads guilty. Pleading guilty at the first possible opportunity will obtain the maximum discount. An experienced legal adviser, such as the noble Lord, Lord Beecham, will approach the question of an appropriate plea with delicacy and will not of course encourage a defendant to plead guilty if there is a defence. Indeed, they will go further than that and tell the defendant that they should not plead guilty to an offence they have not committed. We believe that the delicate matter should not and will not be distorted by the question of a criminal courts charge.

Let me deal with the point that perhaps can be summed up by the principle of totality, which those of us, like me, who have had to sentence defendants have borne very much in mind. It is true that, very often, where there are a number of different sentencing options on the menu and more than one has to be prescribed, a judge will try to make sure that, in the round, the penalty or combination of penalties is meted out that is appropriate to the offence. I understand why certain magistrates have been rather more lenient than they might have been, obviously had there not been the criminal courts charge, but that is not what the legislation provides and is not something that should be done.

The criticism is also advanced that there was a lack of parliamentary oversight in relation to these provisions, and the suggestion is that the statutory instrument severely limited that oversight. There is nothing improper about the time in which the regulations were laid. I can assure noble Lords that the criminal courts charge provisions underwent considerable scrutiny. I can personally testify to the level of scrutiny they underwent in this House. I have looked back at Hansard for the House of Commons, and the principle and the appropriateness of a criminal charge were considered in debates. The question of the actual level of the charge is a different matter—I see the noble Lord, Lord Beecham, grimacing. I wholly understand that there is a distinction.

However, the concerns raised in this Motion regarding discretion and the effects on plea decisions are points that were carefully considered and debated at considerable length at the various stages during the consideration of the Bill in both Houses. As to charge levels, draft charge levels were also published to inform parliamentary and public debate, the charge levels set out in the regulations being a slightly adjusted version reflecting up-to-date costing information. I do not consider that the Government at the time behaved improperly by laying the regulations when they did, especially in light of the significant amount of scrutiny that took place generally on the principle. It may be that magistrates expected there to be a greater amount. This was a difficult attempt to try to cost the use of the courts. The victim surcharge is another mandatory charge—there is no discretion—which was introduced in 2007 by the then Labour Government.

On the question of benefits assessment, regarding the suggestion that claims on savings cannot be substantiated, an impact assessment was published when the Act was introduced early last year that was based on indicative charge levels. Significant work was then carried out to assess the costs of running the criminal courts, which resulted in the publication of the draft charge levels I have previously mentioned. This was published as an addendum to the original impact assessment and included an updated analysis of the benefits and costs of the policy. An updated impact assessment was produced to accompany the regulations and has now been published. It includes a considered analysis of the benefits and costs of the provisions, estimating total cash inflows arising from the charge at £95 million from 2019 to 2020.

A number of noble Lords remarked on the unfortunate response of a large number of magistrates. I agree with all noble Lords who have emphasised the importance of magistrates and what a vital task they perform for society in general, and we are of course concerned that any magistrates should not feel confident in the provisions of sentencing and indeed other provisions that they have to administer. Of course I have read about and the Government are well aware of those magistrates—reported in the media to number something like 50—who say that the courts charge was certainly one of the reasons for their resignation. Just for context, I should say that I understand that 350 magistrates have resigned in the relevant period, and of course others will have retired. They may have myriad reasons for doing so. However, I do not want to underestimate the significance of the general discontent referred to by the noble Lords, Lord Rooker and Lord Ponsonby, and others. The Secretary of State and the Ministry of Justice take that matter very seriously.

I also bear very much in mind what a number of noble Lords have said about the importance of rehabilitation. We do not believe that this will be an additional barrier to rehabilitation. The Government are extremely concerned that rehabilitation should be at the heart of reforms to our sentencing provisions and indeed in the way in which the prison service will, we hope, be changed in the following years. I should say that failure to pay the court charge will not extend the time it takes for a conviction to become spent for the purposes of the Rehabilitation of Offenders Act 1974. I take the point made by the noble Lord, Lord Ponsonby, that it is important that defendants feel that they have been dealt with fairly, and that itself can be relevant to their rehabilitation. However, we consider that setting the repayment rate fairly and proportionally according to each offender’s individual circumstances, as long as they provide the court with the details, should mitigate any sense they have of unfairness which may follow the criminal courts charge.