Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Ponsonby of Shulbrede

Monday 20th October 2014 Lords Chamber

[Lord Faulks]

My Lords, we have had something of a trailer from the noble and learned Lord, Lord Lloyd, and I do not propose to respond in detail at this stage. For the sake of clarity, I might say that these amendments are about determinate sentence prisoners as opposed to indeterminate sentence prisoners, into which category IPP prisoners fall.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Ponsonby of Shulbrede

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

I am grateful for the contribution of the noble Lord, Lord Stoddart, to the issue, which I entirely accept is delicate. There can be no doubt that he would discharge the role of juror in an exemplary fashion and to the great benefit of all those who were tried—either in a way that they would want or not.

The respondents to the consultation about the upper age limit were almost equally divided as to whether there should be one, and I do not pretend that it is an easy issue, but the Government’s view was that, notwithstanding the health and vigour of many over the age of 75, an increasing number of people would find it difficult or almost impossible to sit as jurors and would therefore seek to be excused jury service. They might not want to have to go through the process of seeking to be excused jury service. Rather than putting them through the process of applying for excusal, and spending taxpayers’ money dealing with that additional administrative burden, the age limit is set at 75. I do not pretend that there is any precise science behind that, but it reflects a balance of different arguments.

[Lord Ponsonby of Shulbrede (Lab)]

From the point of view of the magistracy, where there is currently retirement at 70, it is the view of the Magistrates’ Association that that is about right and that it should not be increased to 75. The reason for that view is that many defendants who come before the Bench are much younger. Obviously that is true in the youth court, but it is true in the adult court as well. The issue is regularly debated at the Magistrates’ Association, and the view of the association is that 70 should stay as the age of retirement for magistrates.

[Lord Faulks]

I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Ponsonby of Shulbrede

Wednesday 23rd July 2014 Lords Chamber

[Lord Faulks]

I thank noble Lords who have taken part in this useful debate. In addition to my response and the moving of government amendments, the debate has enabled the Government to place on record the rationale behind these provisions, which are broadly welcomed. I am reassured to hear, as I knew was the case, that the Magistrates’ Association is very much in sympathy with this, as are magistrates such as the noble Lord, Lord Ponsonby, and Newcastle magistrates’ court, which, sadly, misses the noble Lord, Lord Beecham. There is general consensus that this is a move in the right direction. Nevertheless, I also understand that there is the feeling that there should be safeguards to ensure that there is no sense that these hearings take place behind closed doors unless it is entirely appropriate that that should be the case.

I shall deal first with Amendment 49A, which seeks to require that the list of offences to which the new single justice procedure should apply is set out in secondary legislation. Our intention is that all summary, only non-imprisonable, offences should be in scope of the procedure. However, we anticipate this procedure being used only in the more straightforward cases, such as where the particular circumstances of the case mean there is no direct victim or specific threat to public safety involved, or cases that involve offences designed to regulate the conduct of some particular activity in the public interest where there is a minimal or no mental requirement needed to prosecute. In legal terms, this would mean cases where there is no mens rea or it is easy to prove mens rea.

We expect offences that are technically in scope of the legislation but which might not be suitable for the new procedure to be initially filtered out by prosecutors who make decisions on the handling of these types of cases on a daily basis. It will, of course, be for a single justice to decide whether a case is appropriate for this procedure, and he or she can refer it to the ordinary court at any time. I fully understand the temptation to try to limit or specify a list of offences to which the single justice procedure might apply. However, we have high-quality magistracy in this country who are well used to exercising their powers to determine the right forum within which cases should be heard.

Amendment 49B relates to the rights of the defendant under the single justice procedure. Our provisions allow the court to use the single justice procedure unless the defendant explicitly states that he or she does not want that to happen or intends to plead not guilty, in which case it will automatically be referred to a traditional magistrates’ court. The objective of the single justice procedure is to address the current situation, whereby a significant number of defendants fail to engage with the process at all. Although the effect of the amendment would be to allow a single justice to consider any case, regardless of the defendant’s response, I understand that the intention is to remove the ability of the single justice to hear cases where the defendant has not responded. I recognise that this may be in response to concerns about the assumption that, where a defendant does not engage, the case should nevertheless still be heard by a single justice. However, it should be remembered that the defendant will have the right to request a traditional hearing in open court at any point before his or her case is considered by the single justice. If a defendant does not know about the case until after it is finished, they can make a statutory declaration to that effect, which will start the proceedings again from the beginning.

Amendment 49C would introduce a new requirement that the documents sent to the defendant with the single justice procedure notice should include a copy of the submission from the DVLA informing the court of any penalty points on the defendant’s driver record. It is the explicit responsibility of the holder of a driving licence to ensure that it is kept up to date by surrendering it as and when required for details to be changed or endorsements added. If there are endorsements on a driving record that do not appear on the counterpart of the corresponding driving licence, the licence holder might well be committing a further separate offence. I assure noble Lords that courts will have direct access to DVLA records. The days that the noble Lord, Lord Beecham, remembers of a moth-eaten driving licence being handed up to the justices have departed. A single justice will have information about an offender’s previous offences before them when trying a motoring offence.

[Lord Ponsonby of Shulbrede]

My Lords, I am sorry to disabuse the noble Lord, but those days are not departed. In fact, it is far more common for the defendant not to be able to produce a driving licence at all.

[Lord Faulks]

I defer to the noble Lord’s experience in that regard, although the new format of the driving licence makes it slightly less destructible than its predecessor. I maintain nevertheless that the courts do have access to the DVLA records, so, when trying a motoring offence, a single justice will have the information even if the defendant does not produce a driving licence at all. I am therefore confident that the safeguards we have built into this procedure make the amendment unnecessary.

Amendment 50AA would remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind this policy. We consider the time wasted and costs incurred in requiring magistrates to sit in open court and decide cases disproportionate in the type of straightforward, low-level cases that this procedure will apply to. Safeguards are in place to enable a prosecutor to ensure a case is heard in open court by issuing a requisition and a defendant to ensure the same by indicating his or her wishes in response to the single justice procedure notice. I reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure that proceedings are open and transparent. The press and public will continue to have access to information about these cases, as they do now.

Amendment 50C would allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering the case. In practice, parties will not know when a case will be considered by a single justice under this new procedure, so it is extremely unlikely that this situation would occur. However, there is a risk that it could be seen as encouraging prosecutors to turn up and assist the court. That could be perceived as unfair and unequal, particularly if the case was being heard other than in open court. We could not allow evidence to be heard by a magistrate when a single justice was making a decision, as that would lead to unfairness if the other party had not been given the opportunity to consider that evidence. In any case, there is clear provision in the Bill stating that when a person wants to be heard by a magistrates’ court, they are perfectly able to request a hearing.

Amendment 51B would introduce a legislative requirement to publish in advance details of cases to be heard under the single justice procedure and to publish the outcome of these cases. It is, of course, vital that the media and the public continue to have access to information on these cases under the new single justice procedure. However, the appropriate place for such provisions is within the Criminal Procedure Rules. Those make it clear that certain specified information must be made available to journalists and other members of the public on request. The rules also allow the court to make certain additional case information available to third parties on request. The Criminal Procedure Rule Committee will be invited to review the Criminal Procedure Rules to make sure that they are fit for purpose for the single justice procedure.

I can reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure the proceedings are open and transparent. The press and public will continue to have access to information about cases, as they do now. There is a protocol in place between Her Majesty’s Courts and Tribunals Service, the Newspaper Society and the Society of Editors whereby magistrates’ courts routinely make written lists of cases and results available to local media, most often by e-mail. This arrangement will continue.

Amendment 52A introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. This deals with the point made by the noble Lord, Lord Beecham, about things such as language difficulties. The associated documentation sent to defendants under the single justice procedure will be no more complex that the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility afforded by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunals Service is also considering, as part of implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants. The provisions, as set out, provide magistrates’ courts with the flexibility they need to operate the single magistrate procedure effectively while ensuring that the rights of defendants are protected.

I will say a little more about the suggestion put forward by the noble Lord about the availability of information on case outcomes. I agree that the information should be available as soon as possible after the trial has concluded. In both cases, the noble Lord suggests that this should be within 21 days. However, such detailed procedure should not be contained within the legislation itself. As I said earlier, the appropriate place for such detail is within the Criminal Procedure Rules.

We know that journalists and the general public seldom attend to watch this type of hearing and this is the reason behind the protocol to which I referred. As to the listing, we accept that it is vital for there to be access to information and we anticipate that cases will initially be listed in the same court buildings as they are at the moment. This arrangement with local media will replicate exactly what currently happens in practice. In future, we will want to take advantage of the fact that consideration of cases in writing can happen anywhere, and maximise the efficiency that can be derived from this greater flexibility. In doing so, we will want to maintain flexibility and transparency.

There are opportunities, as part of the criminal justice system digitisation agenda, to look more radically at how we can use the opportunities of digital to preserve and perhaps enhance open justice. It is our intention to make case information available on a self-service basis and enable the press and public to access cases in real time and follow the progress of the digital process online in a more meaningful way than they can at present. The rule committee will be invited to review the rules to ensure they are fit for purpose for the single justice procedure. I am sure that such a review will want to take into account the proposals made by the noble Lord, Lord Ponsonby. Any necessary amendments can be made, subject to annulment by either House of Parliament in the usual way.

I hope that, in the course of rather too long a response to those amendments, I have been able to allay any concerns and explain the thinking behind the single justice procedure. With that reassurance, I hope noble Lords will not press the amendment.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Ponsonby of Shulbrede

Wednesday 23rd July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

I have a point that is slightly tangential to the group of amendments we have just been debating. When magistrates are fining somebody, for a huge proportion of the time they do not know the existing level of outstanding fines; so they are fining somebody when they do not know what debts to fines they already have. I understand that this is a practical problem and a difficult issue that the court service is reluctant to address. Surely, however, if one is serious about reducing the level of outstanding fines, one should try to address it so that when a court sets fines it knows the level of the outstanding fines when it puts in place the sentence.

[Lord Faulks]

It is certainly the case that the court should know, as far as possible, the level of outstanding fines. I understand the practical difficulties that can be encountered by courts but, with great respect to the noble Lord, we are concerned here with a definite, fixed cost in relation to the particular nature of the offence, which will not depend on fines outstanding. That is not a question—reasonable though it is—that arises on consideration of these amendments.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Ponsonby of Shulbrede

Monday 30th June 2014 Lords Chamber

[Lord Faulks]

My Lords, I said in opening that I anticipated that the Bill would receive scrutiny of the highest order by your Lordships, and this Second Reading debate has given an indication of the level of scrutiny that your Lordships’ House can anticipate where all these provisions are concerned.

It has been a full debate and I will have an opportunity to read carefully all the contributions that have been made—as indeed will the Secretary of State. I hope that noble Lords will forgive me if I do not respond to every single point that was made, time being what it is. If I single out some points, I hope those whose points are excluded will not feel that they have gone unrecognised or that they will not be appropriately responded to in due course. It has been an intensely serious debate, although references to Philip Larkin, John McEnroe and Walter Matthau provided slight light relief during its course. Unfortunately, few noble Lords were as brief or as accommodating as my noble friend Lord Black.

I can, however, begin with what I hope will be one or two reassuring propositions. First, there was a suggestion that there might need to be an amendment to deal with what has been described as “revenge porn”, referred to by the noble Lord, Lord Marks, and my noble friend Lady Barker. There seems to be a great deal in that, and I am happy to meet them and consider any suggestions to include it in the Bill.

I said in opening that I would also consider amendments to satisfy, I hope, some of the concerns about the role of interveners in judicial review proceedings. I do not want to give the House the impression that I am thereby, as it were, handing over a blank cheque, but I am anxious, if possible, to accommodate some of the concerns of many noble Lords in this area.

The noble Lords, Lord Blair and Lord Low, referred to a campaign, if I can call it that, from Families Left Behind and the suggestion that there should be some statutory duty imposed on the sentencing tribunal to take into account the effect of the sentence on those who may be left behind when somebody is deprived of their liberty. In my limited experience as a judge, this, and the consequences thereof, will first of all be considered by a judge in sentencing. The probation service will be aware of the consequences and local authorities have their own duties that will usually be triggered by the information that is available in court. Noble Lords may be right that some slip through the net. I will certainly consider any suggestions along the lines that have been described.

On the question of the meaning of the words “et cetera”, raised by my noble friend Lady Barker in the context of malicious communications, I think it is defined in the Malicious Communications Act 1988. It deals with all the various communications one would expect it to cover in the light of modern media.

The noble and learned Lord, Lord Lloyd, raised, as he has done many times before, the question of IPP prisoners and their plight. I look forward to debating any amendments in that respect in more detail. I responded to a debate on 27 March this year—in some detail, I hope—but I fear I will not be able to satisfy him today. There are no current plans by the Secretary of State to exercise the power to amend the Parole Board’s release test for prisoners serving such sentences.

I noted that the party opposite was silent on IPP prisoners. I am still not quite sure what its position is, and whether it opposes the very fact that the sentencing power was repealed as a result of the intervention of the former Lord Chancellor. I fear that I cannot help the noble and learned Lord for the moment, but I hope he will acknowledge—if not overtly, then tacitly—the fact that Ministry of Justice officials have been endeavouring hard to help him by providing details for the purposes of preparing this speech, and, indeed, any further interventions.

I was not aware that I had the pleasure of a meeting forthcoming with the noble Baroness, Lady Thornton, to describe better the definition of rape on the internet. I look forward to that. I am sure that the Government, the Opposition and all noble Lords have similar intentions where this is concerned. We welcome any advice on trying better to define what the evil is that we all aim to stem.

I respectfully endorse what the noble and learned Lord, Lord Brown, said about personal injury claims and the evil that the Government are trying to eliminate. Frankly, we do not think that a judge will have any difficulty recognising fundamental dishonesty. We are talking not about a schedule that contains some slight exaggerations or minor inaccuracies, but about fundamental dishonesty. If we ask a jury to decide a question of what is dishonest or not, surely we can entrust a judge to decide whether, in appropriate cases, there is fundamental dishonesty. The Government are appalled by the explosion of litigation in claims that involve, frankly, lying and fraud. Whether through the Claims Management Regulator or through this particular clause, I am sure that we share with all noble Lords the desire to reduce, and, if possible, eliminate it.

The redefinition in statutory terms of misconduct in public office was broadly welcomed, although not by the noble Lord, Lord Blair. There are some areas where it may not possibly apply. We do not think that police officers should be singled out, but on the other hand they are in a position where they serve the public in a very high-profile context. We cannot avoid the fact that there have been instances of police corruption. The Government consider that putting a clear offence on the statute book is not to persecute the police or to single them out as opposed to other public employees but to make clear the nature of the offence and, in appropriate circumstances, to provide the basis for a prosecution.

A number of noble Lords asked about the Parole Board and about the impact on its workload of the provision in Part 1. The provisions that will have the greatest impact on the Parole Board are the new discretionary release arrangements for extended determinate sentences and certain child sex and terrorism offences. However, it will be quite some time before the first of these cases starts to filter through the board and we have taken account of that. We are working with the Parole Board to assess the impact of the Osborn judgment. Additional in-year funding has been provided to the board, as well as an increased budget allocation for 2014 and 2015.

The offence of wilful neglect was mentioned by, among others, my noble friends Lord Hunt and Lady Barker. The House is well aware of the background to this offence and why it was considered necessary to make it part of the statute book. I listened carefully to concerns about the range of legislation that may apply in neglect cases and I accept that there may be a degree of overlap. However, where that occurs, it is for the police and the CPS to determine the most appropriate offence to pursue. The CPS regularly provides guidance in this respect. We think that it is far better to close any gap in working practice to arrive at the best solution than to retain even the possibility of any lacunae in the law.

My noble friend Lady Barker had a specific query in relation to Section 44 of the Mental Capacity Act. If I may, I will consider the point that she raised and write to her.

I come to the area of perhaps the most difficulty—the question of secure colleges. The noble Baroness, Lady Stern, said in her excellent and informative speech that it was one thing to point out the number and cost of young offenders who were currently accommodated in various institutions and who reoffended but another to move to the proposition that secure colleges were the answer. I hope that I do not mischaracterise what she said. Equally, one could turn that round and say that those bare facts simply do not justify the status quo. The status quo is not, we suggest, an appropriate response to this dreadful cycle of reoffending. We suggest that secure colleges, with their emphasis on education, are a solution. Of course, no one can guarantee the success of any solution to this recurring problem but we hope that this one will provide a real concentration of education, which most of these young people have never had before.

A number of anxieties were expressed in very firm terms about secure colleges: the question of different ages and different genders, and the possibility that secure colleges will be remote geographically. I will be hosting an open session for interested Peers to share our initial designs for the pathfinder secure college. As I mentioned in my opening speech, we will consult on our approach to the secure college rules ahead of Report.

I was asked whether it was our intention to replace all secure youth accommodation with secure colleges. Our long-term vision is for a network of secure colleges across England and Wales. That transformation cannot happen overnight, and we are committed to improving existing provision for young people in custody.

I very much hope that as a result of no doubt probing amendments and further information, which I shall be happy to provide, your Lordships’ House will share the Government’s vision of secure colleges to deliver high-quality and broad-ranging facilities that can meet the diverse needs—often special needs, I accept—of young people in detention. It requires something that simply cannot be achieved in a small local facility—desirable though such facilities are, as was well described by my noble friend.

[Lord Ponsonby of Shulbrede]

Before the noble Lord leaves the point about the network of secure colleges, does it follow that there would be three secure colleges to deal with the whole of England and Wales? There would be around 300 children in each college, making about 1,000 altogether? The noble Lord said that a few secure children’s homes would be retained. Does it therefore follow that there are to be three secure colleges for the whole of England and Wales?