Criminal Justice and Courts Bill
Lord Hope of Craighead Excerpts(10 years, 3 months ago)
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Lord Pannick
My Lords, I shall speak also to Amendment 165. Your Lordships now turn to Clause 73, which concerns the costs of interveners in judicial review proceedings. Your Lordships will know that often in judicial review cases the court allows a person or body to intervene because they have knowledge or experience which may assist it in resolving the legal issues. Clause 73 states that interveners may not receive their costs other than in “exceptional circumstances”, and it adds—this is my concern—that, unless there are exceptional circumstances, an intervener must pay any costs that have been incurred by a party as a result of that intervention.
I cannot understand why such a provision is necessary or appropriate. The current legal position is clear and fair: the court has discretion over whether to order a party to the judicial review to pay the intervener’s costs or whether to order the intervener to pay costs to a party. Clause 73 is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points that assist it in arriving at its substantive judgment. The Minister may say that the intervener can resist paying costs on the basis that there are “exceptional circumstances”, but there is nothing exceptional about the intervener assisting the court: it happens every week in judicial review cases. In any event, if there is a statutory presumption, rebuttable only by showing exceptional circumstances, that the intervener must pay the costs, public interest bodies will be far less likely to intervene. The courts will be denied assistance from those public interest bodies, which will be greatly to the public detriment and greatly to the detriment of the legal system, whether the intervention is from Liberty, the GMC, the UN High Commissioner for Refugees or, indeed, the Home Secretary—because a number of interventions in judicial review cases are made by government departments. None of this makes any sense whatever.
Amendment 164 would provide that it is a matter for the discretion of the court whether to order costs to be paid by or to an intervener. I commend that amendment to the House. I beg to move.
Lord Hope of Craighead (CB)
I support the amendment. It is a feature of Clause 73, as I am sure the Minister will have noticed, that it does not mention the Supreme Court—one should be thankful for small mercies—but it creates a very unbalanced situation. As the noble Lord, Lord Pannick, has explained, interventions are extremely helpful. Nobody has a right to intervene—courts at every level give permission if they are persuaded that the intervention would be of use to them—so that I cannot see that there is any compelling reason for turning interveners away. The court values them, and certainly, from the point of view of the Supreme Court, in my experience where we allow an intervention we derive benefit from it.
The regime that the clause seeks to create seems rather unbalanced. From the Supreme Court’s point of view, as we are a court of appeal, it would much rather, I am sure, that those who had a point to make were able to make it at the Court of Appeal level if not at the level of the High Court. While I welcome the absence of the Supreme Court from this clause, it adds to my feeling that there is something wrong about it. Given that the intervener has no right to intervene and that the courts are perfectly capable of controlling the volume of intervention and the time taken by interveners, which the Supreme Court does regularly, I cannot see any value in the reform, if one can call it that, that the clause seeks to bring about.
Criminal Justice and Courts Bill
Lord Hope of Craighead Excerpts(10 years, 3 months ago)
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Lord Hope of Craighead (CB)
My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:
“The duty under subsection (2)”—
which is one to dismiss a primary claim—
“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.
It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.
Lord Marks of Henley-on-Thames
My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.
I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.
I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.
However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.
Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.
However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.
I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.
I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.
Lord Hope of Craighead
My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.
I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.
Lord Faulks
I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.
Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.
Lord Hope of Craighead
My Lords, I want to make one or two points about Amendment 145, based upon my experience as a prosecutor taking evidence from very young children. One has to bear in mind that not every case in which a child is giving evidence is a case of child abuse. Some of them may be cases such as theft or something of that kind where the child is an essential witness but in no sense has been traumatised by the event about which they are speaking. One has to be a little careful about spreading the protection wider than is necessary.
The other point is that, speaking from my experience of prosecuting before juries, it is extremely important that juries should have an opportunity to assess the credibility of the child witness. I recall a particular case where I led evidence from a child aged six who was completely convincing and apparently unconcerned about the surroundings in which she was giving her evidence. The fact that she was so obviously credible made all the difference in securing a conviction against somebody who had in that case abducted her. I am a little nervous about intermediaries because that reduces the impact of the utter frankness which this little girl displayed when she was describing what happened to her. She could not, for obvious reasons, give a full account of all that was done to her because she did not have the language, but her account was absolutely gripping, and the jury, I could feel, sensed immediately that she was undoubtedly speaking the truth. It would not have been nearly so obvious if there had been some kind of protection around her.
There may be cases where the protection is essential; there may be others where it would be unwise if convictions are to be obtained. I am sure the Government will wish to think very carefully about the extremely important points that have been raised. It does require quite careful scrutiny.
Lord Ashton of Hyde
My Lords, I thank the noble Baroness, Lady Howe, for waiting so long to express her views on this issue to the House and her commitment to these issues. If I understand her intention correctly, she is seeking to introduce, through Amendment 144, a new clause which would provide for the use of remote sites for certain young witnesses and, through Amendment 145, to mandate the use of intermediaries for witnesses under the age of 11.
I first reassure the noble Baroness and this House that the Government take seriously the support of victims and witnesses across the criminal justice system. Indeed, special measures are already available to assist vulnerable and intimidated witnesses in court, including all witnesses under 18 years old. These measures can include screens round the witness box to shield the witness from the defendant, evidence by live link and the use of a registered intermediary or communications specialist to ensure that the witness understands the questions being asked.
Children are automatically eligible for special measures to ensure that they are able to give their best evidence. The presumption is that in most cases children should give their evidence by video-recorded statement, which would be played during the trial as their evidence in chief. In addition, any further evidence or cross-examination will ordinarily be conducted via live link and the court may permit a supporter to be present. The aim is to minimise the number of times a child is questioned and to enable them to give evidence from outside the courtroom.
We fully support looking at other ways to help vulnerable and intimidated witnesses give their best evidence. We know that the court environment can be challenging for some witnesses and are exploring ways in which we can use remote links and developments in technology to help such witnesses give evidence from outside the court building.
On Amendment 144, I advise the House that a majority of Crown and magistrates’ courts already have the facilities that allow witnesses to appear by secure videolink from a different location to the trial court. The use of remote videolinks, and extending this to other non-court sites, will not require any new legislation. We have recently committed to establishing at least one non-court location in each court area for vulnerable witnesses to give their evidence, as the noble Baroness mentioned.
The noble Baroness asked what else we were doing in this regard. We are using live-link technology in piloting pre-trial cross-examination in Kingston, Leeds and Liverpool Crown Courts to help vulnerable witnesses give their best evidence. This has the advantage of sparing witnesses from the full courtroom atmosphere by allowing the cross-examination to take place before the trial, as well as allowing evidence to be given closer to the time of the event. The pilot will end this month, followed by an evaluation and decision early next year on any further rollout if the measure is successful.
On Amendment 145, I am afraid that the Government are not convinced that the mandatory provision of a registered intermediary is necessary or always helpful—this pertains to the point made by the noble and learned Lord, Lord Hope. Intermediaries and other special measures should be used based on a witness’s assessed needs rather than offering blanket provision to any group. Witnesses retain the right to decline the offer of assistance from an intermediary if they do not want this assistance. We must instead ensure that witnesses receive the right type of special measure and that they are fully informed and supported, especially young children.
We are working closely with our partners in the criminal justice system to ensure that a witness’s need for a registered intermediary is identified. We continue to assess regularly the capacity of the intermediary workforce to ensure that we can plan for and meet demand. This includes considering future plans to increase the number of intermediaries available. We know that the demand for registered intermediaries is steadily increasing and is at its highest level since the start of the scheme 10 years ago, which is very encouraging. We are working with the police and the CPS to improve identification of the need for registered intermediaries for vulnerable witnesses in addition to assessing workforce capacity given the current demands for the scheme. This would include planning for future recruitment campaigns. On the details of Amendment 145, I can assure the noble Baroness that intermediaries must be screened by the Disclosure and Barring Service and meet a number of other criteria before joining the witness intermediary scheme.
I recognise and support the sentiments behind the amendments. However, in the light of our work in this area, the Government do not feel that either is necessary. In the light of my explanation, I hope that the noble Baroness will reconsider her position and not press her amendments.
Criminal Justice and Courts Bill
Lord Hope of Craighead Excerpts(10 years, 6 months ago)
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“President of the Supreme Court
(1) Section 5 of the Constitutional Reform Act 2005 (representations by senior judges) is amended as follows.
(2) After subsection (5) insert—
“(6) The President of the Supreme Court may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the Supreme Court or the jurisdiction it exercises.””
Lord Hope of Craighead (CB)
My Lords, I am very conscious of the lateness of the hour and I shall be as brief as I possibly can.
This amendment, together with Amendment 69 which follows it, seeks to deal with matters which may have been overlooked when the Constitutional Reform Act 2005 was passing through Parliament. They both relate to the Supreme Court, provision for which was made in Part 3 of the Act. I tabled both amendments at the request of the President of the Supreme Court, the noble and learned Lord, Lord Neuberger.
Amendment 68 would extend to the President of the Supreme Court the same opportunity to lay representations to Parliament on matters that appear to him to be of importance that Section 5 gives to the heads of the judiciary in each of the three separate jurisdictions within the UK: England and Wales, Scotland and Northern Ireland.
So far as I can recall, no thought was given to the position of the President of the Supreme Court when the Bill that became the 2005 Act was passing through Parliament. There may be various reasons for that. I do not recall the matter being discussed at all. I do not think that there was any policy decision on the matter either one way or the other. There may have been a drafting explanation, because Part 2, which contains Section 5, appears in the Act before Part 3, which created the Supreme Court. The separation of those two parts may have led to the matter being overlooked. Whatever the matter, the fact was that the point was concealed from us by the events that were going on at the time. If we had been thinking of the matter now, we would certainly have asked for the president to be included.
I should say that there are no issues of current concern to the president. However, unless the statute is amended, he would be unable to make representations should something of concern arise. He has been looking for quite some time for a suitable vehicle to introduce an amendment to that effect and it seemed to him that this Bill contains that kind of vehicle, which is why this has been brought forward now.
I will say just a brief word about the wording of the provision that is being proposed. The heads of the judiciary in each of the three jurisdictions have no objection in principle to what is being proposed. However, some thought has been given—especially by the noble and learned Lord, Lord Neuberger, and myself—to the precise wording. The words,
“that appear to him to be matters of importance relating to the Supreme Court”,
which is the first part of the formula, are simply a translation of the first part of the formula in Section 5(1) to accommodate the new court. It has been a little more difficult to find a formula that is appropriate to the situation of the new court in place of the words,
“or otherwise to the administration of justice”,
in Section 5(1). The wording in my amendment uses the phrase “or the jurisdiction it exercises”—that is, the jurisdiction of the Supreme Court. The intention of that formula is quite simple: to ensure that the responsibilities of the heads of the judiciary in their respective jurisdictions are respected by the president, which of course he would seek to do.
Finally, I will address two very short points on this amendment. The first is that it would be highly desirable for this formula—or at least one that the Minister can be assured has the agreement of all concerned—to be adhered to in any revised version of this amendment. The second is that between now and when we come back on Report the president and the heads of the three jurisdictions will be seeking to agree a mutually acceptable form of words that will ensure that their respective areas of jurisdiction are respected. They may come up with the same form but, if there is any difference, we will of course let the Minister know.
The second amendment is quite short. It relates to the composition of the supplementary panel, provided for in Section 39 of the Constitutional Reform Act, from which the president may invite someone to sit as an acting judge of the court under Section 38, as is necessary from time to time when places need to be filled. The section contains a number of different sources from which that supplementary panel may be drawn, but time has marched on and subsections (2) and (3), which extended membership of the panel to Members of the House of Lords under conditions which are set out, are no longer relevant as there is now no one who can possibly satisfy those conditions. That is a feature of time marching on. Subsection (6) is of no help for the present either, for the same reason.
Therefore, the only subsection that can now be relied on is subsection (4), which is very tightly drawn, but it requires a decision to be made as to membership of the panel before the individual retires. The president, the noble and learned Lord, Lord Neuberger, has found that embarrassing in at least one case. He wanted to appoint somebody who was eminently suitable and who had retired very recently, but it was too late to catch him to put him on to the panel. The amendment seeks to retain the principle of tightness to avoid individuals becoming too, perhaps, stale after retirement but nevertheless to make it a little easier to draw in people who are suitable for appointment to the panel. That is the purpose behind the amendment. I do not think there is any dispute between any of the heads of jurisdictions about this amendment; it is just a simple matter of facilitating the sensible provision in the Act. I beg to move.
Lord Beecham
My Lords, I am very happy to support the noble and learned Lord’s amendment and I take it that the Government will accede to it. It is a very sensible change.
Lord Faulks
My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.
Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.
First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.
The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.
Lord Hope of Craighead
My Lords, I am grateful to the Minister for his very helpful reply. It is indeed the reply that I expected. It is sensible to take time to consider the matter a little more fully. In view of the undertakings that he has given, I am happy to beg leave to withdraw the amendment.
“Supplementary panel
(1) The Constitutional Reform Act 2005 is amended as follows.
(2) In section 39(4) (supplementary panel)—
(a) after “but only if,” insert “either”,(b) after “while he holds such office” insert “or within two years of ceasing to hold such office”.”
Lord Hope of Craighead
My Lords, perhaps I may be quite clear about where the Minister stands on Amendment 69. I do not think that he indicated where he stood on it. It is a very simple matter. Perhaps he could come back to it on Report, but I should be grateful if he would say where he stands. I beg to move.
Lord Faulks
It is also a matter where we would like to consider the full implications of the changes. The reply that I gave was supposed to embrace both amendments.
Lord Hope of Craighead
I am most grateful. In view of that indication, I am happy to beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Hope of Craighead Excerpts(10 years, 6 months ago)
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Baroness Butler-Sloss (CB)
My Lords, I deplore the carrying of knives, as do all of us in this House. I shall make two short points to support the noble Lord, Lord Marks. First, I am sad to disagree with the noble and learned Lord, Lord Mackay of Clashfern, but my experience of teenagers is that those between 16 and 18 would probably not take the slightest notice of a deterrent, as has already been said. Those who are slightly older—over 18—might, but from my experience as a family judge, I doubt that this would be a deterrent to 16 or 17 year-olds.
Secondly, I sat occasionally in crime, and was not very good at it, but I find it quite extraordinary that successive Governments seem totally unable to trust the judiciary to come to the right conclusion. We know from previous speakers that judges already have all the powers they need to deal with a second offence, to deal with it strongly and to put people away for much more than six months. For those two reasons, I very much support the noble Lord, Lord Marks.
Lord Hope of Craighead (CB)
My Lords, if I may, I will add a few words in support of the points made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Blair, based on my experience as the senior judge in Scotland, the Lord Justice General. When I held that office, which I held for seven years, there was an upsurge, as happens from time to time, in the carrying of knives, particularly by young people. As the noble and learned Lord, Lord Mackay, has told us, there are cases where people who carry knives use them in an impulsive reaction to something said or done, resulting in horrific injuries. I spent four years as a prosecutor dealing with these cases.
Sitting as Lord Justice General, one of my responsibilities was to preside over the appeal court dealing with appeals against sentence in cases that had come up through the courts—sometimes through the sheriff court or sometimes through the High Court—where people had been sentenced for carrying knives. We thought that part of our duty in disposing of those appeals was to send out a message, because of the deterrent effect that we hoped that it would have. It was very much about deterrence; sometimes one added much more colourful wording to strengthen the deterrence. We might be quite lenient in the decision, but we would couch it in words that were designed to have an effect and draw the media’s attention, in the hope that they would report what we said and carry the message that the carrying of knives would be likely to lead to a custodial sentence.
Indeed, I remember going on television at the request of the police, who were concerned about the issue, using my authority as Lord Justice General to make that very point. I said that those who went out into the street carrying knives ran the risk that they might be prosecuted and that there was a risk that they might find themselves subjected to a custodial sentence. Of course, I was not cutting across the independence of the judiciary or the discretion that we all exercise; our concern was to get the message across. There is a force in doing that in statute, provided that it is appropriately worded.
I have looked at the wording of this particular clause, which contains fairly strong language, pointing in the direction of judicial discretion. As the noble Lord, Lord Marks, has said, I am concerned about bringing into consideration the first offence, which could be extremely important. But one must not underestimate the power of the deterrent effect coming through the message from a measure of this kind. I was not sure that, as judges sitting in the appeal court, by saying the things that we so often did, we were really getting the message across, which was why I was prepared to make a statement about it on television. I was not sure whether that in itself got the message across, either. But putting across the message and deterring people from getting involved in these things, with dreadful consequences for them and their victims, is immensely important. There is great force in the point made by the noble Lord, Lord Blair, to that effect.
Lord Purvis of Tweed (LD)
I intervene on the noble and learned Lord with a degree of trepidation. He rightly gives the experience of Scotland from a most senior position. While this was not at the same time, I served on the Justice Committee in the Scottish Parliament, which took a conscious decision to reject the course being taken with this amendment. Instead, we took the approach of putting more resources into the violence reduction unit in the former Strathclyde police force, and working with those charities for gangs. We found that to be the most effective way in which to communicate the message, rather than an approach of amending legislation, which we were informed by all of those experienced on the ground in those communities would not be the most effective way. I may agree with the noble and learned Lord, but we come to a different conclusion. Would he reflect on that before he concludes his remarks?
Lord Hope of Craighead
I am very grateful to the noble Lord for raising that point. Of course, one supports everything that could be done by people on the ground, and there are all sorts of things that could be done. I was trying to get across the fact that I was approached by the police to use my authority, as the senior judge in Scotland, to make the announcement that I did on television in the terms in which I made it.
There is a choice as to whether one trusts the energy and resources of those on the ground to carry the message across, coupled with such statements as the judiciary can make, or whether one has to resort to statute. The point that I am making is that deterrence is crucial in this field and that the more one can deter the carrying of knives and thereby the incidents that follow from the carrying of knives, the better.
Criminal Justice and Courts Bill
Lord Hope of Craighead Excerpts(10 years, 7 months ago)
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Lord Ramsbotham (CB)
My Lords, perhaps I may add a word to what the noble Lord, Lord Ponsonby, has said in amplification of his noble friend Lord Beecham. In addition to saying that £3 million would be made available, the Minister has been quoted as saying that a number of changes are to be introduced to ease the pressure on the Parole Board. In addition to the possibility of lay magistrates being used, as mentioned by the noble Lord, Lord Ponsonby, can the Minister outline exactly what those changes are? I am quite certain that the Supreme Court introduced the Parole Board in oral hearings because it was satisfied that the board gave a fair hearing to people, and that was how it operated. I would hate to think of some of the parole decisions being reduced to bureaucratic decisions taken by officials.
Lord Hope of Craighead (CB)
My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.
Lord Faulks
My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.
Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.
We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.
The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.
Lord Ramsbotham
My Lords, I support the amendment and in particular the intervention made by the noble Lord, Lord Marks. In doing so, I remind the Committee of one group of people whom I mentioned during the debate to which my noble and learned friend Lord Lloyd referred. I refer to prison staff. I am glad that the noble Lord, Lord Marks, mentioned the word “hope”, because when I inspected prisons in which full life tariff prisoners were held, their governors made the point to me that the fact that those cases could be reviewed, which was not necessarily the same as that they might be released, gave the prisoners hope and therefore enabled them to conform with the prison regime. That was vital for the purposes of the prison staff who had to maintain the regime. It is important in considering this that the role of the staff should not be forgotten.
Lord Hope of Craighead
I want to add a footnote to the points made by the noble and learned Lord, Lord Phillips of Worth Matravers, based on my own experience. I became the Lord Justice General of Scotland about 25 years ago. At that time, one of the sentences that was available to a trial judge was a discretionary sentence that a person would be detained without limit of time. It was not a sentence of life imprisonment, but was in effect, as it was put in the case of young offenders, detention at Her Majesty’s pleasure; that is, at the discretion of the Secretary of State.
While I was holding that office, Strasbourg began to pronounce on the compatibility with Article 3 of that kind of system. It was decided in Scotland that the system was no longer maintainable, and what was required of me as Lord Justice General was to examine the cases of all those who had been given that kind of sentence to provide them with a tariff—or, in the Scottish terminology, a punishment part—which would set the date as from which their cases might be considered by the Parole Board. Until that was done, it had been entirely at the discretion of the Secretary of State, and it was thought that that was improper. The system that was devised was to require a judge to review such cases, recognising, as others have suggested today, that it would be incompatible with the convention for the decision to be left with the Secretary of State.
It was a very unpleasant exercise for me as the people who had received those sentences had committed the most appalling crimes. In comparison with life sentences, which sometimes were relatively simple, these people deserved the most condign punishment. Nevertheless, it was decided that they required some kind of certainty, removed from the discretion of the Secretary of State, so that they could plan their time in prison and there could be some method for review. It was not of course for them to be automatically released; that was not the point of it. It was so that their time in prison could be subject to a regime which would give them, as was said by the noble Lord, Lord Ramsbotham, some reason for hope that, possibly, in the very long term and in exceptional circumstances, they might be released.
The system being put forward in this amendment is therefore very similar in principle to one which was introduced about 20 years ago in Scotland to cure a similar problem about leaving the matter to the discretion of the Secretary of State. For that reason, I, too, support the amendment as being sound in principle.
Lord Elystan-Morgan (CB)
My Lords, seldom can there have been such an array of distinguished supporters for any amendment, and all I seek to add is some very short footnotes.
There are principles of immense worth and significance that are associated with this issue, one of them being, as so many speakers have pointed out, that there is no such thing as an irredeemable prisoner. I remember the very first day that I came here, which was about 33 years ago. A very distinguished judge had said that, in his vast experience, he had not thought that prison had reformed anybody at all. I remember thinking then about the exact wording of Rule 1 of the Prison Rules 1964. The wording was that the prime purpose of punishment should be the reform and rehabilitation of the prisoner. That is not now placed quite as high—it is now third on the list—but it still occupies a prominent place. To deny the prospect, remote though it might be, of redemption and the even more remote prospect of release—this will operate only in a very few circumstances—would be to deny one of the basic tenets of our concept of justice and punishment.
Divorce (Financial Provision) Bill [HL]
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Lord Hope of Craighead (CB)
My Lords, I, too, welcome this much needed Bill and congratulate the noble Baroness, Lady Deech, on bringing it forward. I know that it is the product of a great deal of thought and hard work on her part. I think we must all be grateful to her for that and for providing us with the opportunity to debate her proposals.
The measures that the Bill contains are of particular interest to me for a variety of reasons. First, to a very large extent, they bring the law of England and Wales about financial provision and property adjustment on divorce in line with the law of Scotland, as the noble and learned Lord, Lord Mackay of Clashfern, told us. I should add that I lived and worked with that system in the Court of Session for about 10 years before I came to this House as a Lord of Appeal in Ordinary in 1996. Secondly, I had something to say about that system in the high-value divorce case of Miller v Miller in 2006, which I will come back to in a moment. Thirdly, the provision about prenuptial and post-nuptial agreements recalls for me the case of Radmacher v Granatino, which was heard four years ago in the Supreme Court by nine justices, of which I was one. For all the reasons that the noble Baroness has given, legislation on these matters has for far too long been delayed and is now badly needed.
Perhaps I may start with the provisions about matrimonial property and periodical payments. These are closely modelled on Sections 8 to 11 of the Family Law (Scotland) Act 1985. It is worth noting that that Act followed closely a draft Bill that was recommended by the Scottish Law Commission in a report delivered to the noble and learned Lord, Lord Mackay—as, I think, the Lord Advocate—in November 1981. It was the product of many years’ research and it had taken a long time to be brought forward. However, there it was in 1981 and eventually that Bill was brought before this Parliament and enacted almost without amendment from the recommendations made there. The aim of the Scottish Law Commission was to do exactly as the noble Lord, Lord McNally, said: to replace judicial discretion with clear indications and principles laid down by Parliament, which the judges would be required to follow. It put forward a system that was based on what were described as fair and clearly stated principles but which left enough scope for judicial discretion to allow for different circumstances in different cases.
That Bill attracted little criticism when it was debated here but I remember, when I was sitting as Lord President in the Court of Session, being rather suspicious of it because at first sight it seemed to cut back the element of discretion for the judges too far. In fact, when one looked at the way in which it was working, it appeared that that was not really so and that there was enough discretion to allow for different cases, as the Law Commission had predicted. What I sought to do in the Appeal Court in which I sat was to discourage appeals that interfered with the exercising of discretion by the judges. The old system was fine when a very few judges in Edinburgh were dealing with divorce cases, but this measure coincided with the broadening of the jurisdiction to sheriffs sitting throughout the country. The risk of different views being taken by judges was very real, but it was an important change and, in the end, I greatly welcomed it when I was sitting as a judge.
However, there are two problems in this Bill and perhaps I might focus on them quickly. The first is the one that I mentioned regarding the case of Miller, which was drawn to the attention of the court in Edinburgh as that Act became law and was worked out in practice. It is the definition of matrimonial property and tying its net value to the date when the parties separate. The problem was that sometimes a great deal of time elapsed between the separation and the making of the award and to freeze the value at the date of the separation was in many cases seen to be unfair. That was cured by an amendment in the Family Law (Scotland) Act 2006 and I respectfully suggest to the noble Baroness that her Bill might be amended to take account of that amendment, replacing her formulation by directing attention to the date of the award.
The second point that troubled me greatly in Miller was the situation of a high-earning wife who gives up a career to look after the children, and indeed her husband, in the course of a marriage. I had before me at the time when I was dealing with Miller a letter from a lady in exactly that situation who lived in the south of England and was being taken to divorce in Scotland by her husband, in what I thought was a blatant piece of forum shopping, so that he could take advantage of the three-year “clean break” principle. Her position was that she could never return to the high-earning position that she had held before she married—that simply was not realistic—so she was being required, as the Scottish Law Commission put it, to adjust to a lower standard of living.
That seemed very unfair to me and I wondered whether the law could not be adjusted to give a little more discretion to judges to allow for such cases where high-earning women were being deprived of their ability to continue earning because of what they had done for the family and for the husband. I suggested that the law may have made sense in 1981 but, now that there was so much more equality and the opportunities for women to earn higher earnings was so much greater nowadays, it needed to be rethought. I was quite severely attacked by academics in Scotland for making that suggestion because it looked as though I was criticising the Scottish Law Commission. I was not trying to do that; I was just saying, “Let’s bring the matter up to date”. I suggest that the noble Baroness might like to consider that point, too.
I have one other point to make on the matter of post-nuptial and prenuptial agreements. The problem that the Supreme Court had in Radmacher v Granatino was twofold. First, there was a policy objection, which was based on the view that these agreements, particularly the prenuptial ones, in some way encouraged parties to breach the duty to live together that was the essence of marriage. We in the Supreme Court were able to say that that policy should be now discarded and I think that it no longer plays a part in modern thinking, but what we could not do was alter the primacy that the statutory law gave to the court in deciding whether these agreements should be enforced. It was important then, and it is important now when one reads the noble Baroness’s Bill, to substitute that with the primacy of the agreement of the parties, which takes one back to the situation that I, in common with the noble and learned Lord, Lord Mackay of Clashfern, would have seen the position to be in Scotland and indeed many other countries. That would substitute the agreement of the parties for the position of the court and in my submission that seems to fit well with the thinking in many places around the world. It would do something that the court could not do, which of course is the great benefit of legislation, as I think the noble Lord, Lord McNally, was suggesting. There is quite a lot to debate in this Bill when it comes to Committee and I very much hope that it has a Second Reading and will then proceed to that stage.
Prisoners: Indeterminate Sentences
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Lord Hope of Craighead (CB)
My Lords, it is a privilege to follow the noble Lord, Lord Ramsbotham, and I join him and others in thanking the noble Lord, Lord Wigley, for initiating this debate. I spent some time this morning reading the report in Hansard of the debates held during the Committee stage of the Legal Aid, Sentencing and Punishment of Offenders Bill on 9 February 2012. They ended with the noble Lord, Lord McNally, the then Minister, moving that what is now Section 128 of the Act should stand part of the Bill. Having read those debates, I appreciate that several noble and noble and learned Lords who have spoken this afternoon took part in those debates too. They really are veterans of this campaign. Tributes have rightly been paid to the noble and learned Lord, Lord Lloyd of Berwick, who stands out as a leader on this issue. This is a sustained and admirable campaign to which I have introduced myself as a relative newcomer.
However, the issue itself is not entirely new to me. As the noble and learned Lord, Lord Phillips of Worth Matravers, pointed out, I sat on the appeals to this House against the decisions of the Court of Appeal in the cases of Walker and James, and had the great advantage of sitting with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who was in his place earlier, and the noble and learned Lord, Lord Judge, who was then the Lord Chief Justice. It gave us no pleasure to have to dismiss those appeals on the ground that the sentences that had been passed against the appellants could not be said to have been unlawful. Fortunately, our decision that their Article 5 convention rights had not been infringed was not followed when they took their cases to Strasbourg, so it is now clear that these prisoners will have claims by way of damages. However, that makes the situation even worse for the Government than we thought it was when we heard those appeals. There will be a large bill to pay for this mistake, in addition to the costs of incarceration, and it is growing day by day and hour by hour as we speak.
We all know that the way the IPP sentences were introduced was regrettable. The statutory scheme itself was ill conceived. As the noble Lord, Lord Marks, pointed out, it was overly prescriptive and left no room for the exercise of any judicial discretion. As a result, far too many prisoners were sucked into it. There is a warning here for this Government too. I need only mention the debate that is still going on about the wording of some of the provisions in Clause 14 of the Immigration Bill, with which the Minister will be familiar, to make the point. It is most unwise to leave judges with no room for manoeuvre. Legislation by its very nature is a blunt instrument. It cannot foresee everything that may happen in the future. Facts vary from case to case. It should be left to the judges to fine-tune what the Government seek to achieve. They can be relied on to follow the guidance and can make it fit the facts. There was no need to spell out in Section 229 and Schedule 15 what was required for them to assess dangerousness and it was entirely misguided for the then Government to insist on doing so. We all know, too, that the system was comprehensively underresourced. I need not go over the details, which have been so well rehearsed by noble Lords who have spoken before me. All I can say is that the situation they have described is one that everyone knows has no place in a decent society.
That all having been said—one can of course pile objection upon objection in looking at the situation we now have—the real point of this debate, as I see it, is to focus attention on what can be done to put an end to the situation. The most interesting part will therefore be what the Minister can tell us in his reply. It was his Government who, very commendably, provided an opportunity to find a way out when they introduced Section 128 of the LASPO Act. As the headnote puts it, that section gives the Secretary of State power, exercisable by order, to change the test for the release of, among others, an IPP prisoner. However, that provision came into effect as long ago now as 3 December 2012, yet here we are, more than a year later, and nothing has been done to put it into effect: no order has yet been made, nor has there been any announcement of when we can expect one.
On 9 February 2012, the noble Lord, Lord McNally, refused to be drawn when he was asked to say when an order under that section could be expected to be made. He said that time was needed to see how the probation rules could be adjusted in the light of the argument to which he had been listening. The Committee was told that a new system of offender management was to take effect as from April of that year and that it was expected to “result in improved targeting”. So the first question I have for the Minister is whether he could tell us what the result has been of the exercise which the noble Lord, Lord McNally, told the Committee about.
Looked at from the prisoners’ point of view, there has been no obvious improvement in their situation at all. Why, then, have no steps been taken to give effect to Section 128? Having asked that question, I have to say with all honesty that I entirely understand the view that the Secretary of State has taken, which is that he has to respect the rule of law. It is not open to him, with great respect, to alter the terms of these indeterminate sentences; nor is it open to him to alter the system that Section 239 lays down for the performance of its functions by the Parole Board. As the House made clear in its judgment in the case of James in 2009, the detention of these prisoners is, and will remain, lawful until the Parole Board gives a direction for their release. The default position—which is the position they are regrettably now in—is that, until the Parole Board gives that direction, protection of the public requires that they should be confined.
Moreover, Section 239(6) of the 2003 Act was not repealed. As a result, when he is giving directions to the Parole Board under that Section 128 of the 2012 Act, and indeed under Section 239, the Secretary of State is required to have regard to,
“the need to protect the public from serious harm from offenders”,
and the need to secure “their rehabilitation”. I cannot see an escape from that situation as the legislation stands at present—that is what the law requires. One simply cannot assume, without looking at the facts of each case, that all those in a given category are fit for release immediately.
However, the situation is not beyond repair. Section 128 of the 2012 Act requires the Secretary of State to steer a narrow course. As the noble and learned Lord, Lord Lloyd, said, it is his duty to exercise the power which Parliament gave to him. There are no short cuts but I cannot understand why he is unable to find a way to exercise that power in the way that Parliament contemplated. The headnote talks about changing the test for release. Can the Minister tell the House what the current tests are, what steps are being taken to see why they are not fit for purpose—as they obviously are not—and what thought has been given to changing them so that they are? I do not see that as changing the terms of the sentences; it is all about changing the test to be applied by the Parole Board. There is great force in the point already made that the power under Section 128(1)(b) should be used, which inverts the onus and requires the Parole Board to direct release unless the Prison Service can satisfy the board that the prisoner should not be released.
There is one further point that I should like to make. There are other things that could be done. The noble Lord, Lord Ramsbotham, drew attention to them in the debate on 9 February 2012. He said then, as he did this afternoon, that there was a need for someone to be,
“made responsible and accountable to the Secretary of State”.—[Official Report, 9/2/12; col. 437.]
Having looked at the idea, there is much to be said for that proposal. Again I ask the Minister: what thoughts have been given to the proposal that was made in that debate in 2012? If it is difficult for him to answer the question immediately, will he be kind enough to write to us to explain what the answer is to the various questions that have been put?
Justice: Academic Research on Jury Decision-making
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Lord Faulks
Directions to the jury are a matter for the judge in the individual case. Judges are making ever more use of written directions, particularly in difficult cases. Very often, they will provide a direction having heard submissions from both prosecution and defence counsel so that they can arrive at an agreed direction. They will give the direction orally and then again in writing. In simple cases, that may not be necessary, but in other cases it is clearly desirable.
Lord Hope of Craighead (CB)
My Lords, is the Minister aware that academic research of this kind has been permitted in New Zealand for at least 20 years and the product of that research is in the public domain? Its system of justice is very similar to ours. Does the Minister think that we might have something to learn from its experience?
Lord Faulks
In answer to the first Question, I indicated that the Ministry of Justice is considering the Law Commission’s recommendation and will of course bear in mind what is said there. The safeguards identified in that report are the same safeguards as exist at the moment. We remain open to persuasion. A Bill will in due course be coming to your Lordships’ House containing various provisions about juries. It is possible that there may be some amendment to that effect.
Anti-social Behaviour, Crime and Policing Bill
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I supported the Government on the clause at Second Reading and again in Committee and on Report. At the risk of wearying your Lordships and displeasing, yet again, those who procured the original amendment of the noble Lord, Lord Pannick, I support the Government again on their proposed amendment and I resist that of the noble Lord, Lord Pannick.
For my part, I, too, accept that this reformulation is in substance no different from its predecessor. Because it avoids the explicit language of guilt or innocence, it may be regarded however, as better able to resist what at one stage was suggested to be its vulnerability to challenge under Article 6 of the European Convention on Human Rights.
I do not propose to repeat all the arguments that I canvassed in support of the Government’s approach at the earlier stages. I now make just three basic points. First, there is all the difference in the world between, on the one hand, a person’s right to be acquitted and thereafter presumed innocent whenever there is any lingering doubt as to his guilt and, on the other hand, the right to monetary compensation for his incarceration pending that eventual acquittal. On Report, the noble Lord, Lord Cormack, reminded us all, and indeed the noble Lord, Lord Faulks, reminds us again, that it is better that 10—the noble Lord, Lord Faulks, says 99—guilty men go free than that one innocent man be convicted. Of course, that is so and it is integral to our criminal justice system, but it by no means follows that it is better that 10, let alone 99, guilty men get financial compensation rather than that one innocent man goes uncompensated. That illustrates the total distinction between the presumption of innocence and the right to go free if there is any doubt at all about the safety of one’s conviction and, on the other hand, the right to monetary compensation for the period of incarceration until that innocence can be established.
Secondly, the present formulation put forward again by the noble Lord, Lord Pannick, is, as has been explained, essentially that of the majority in the Supreme Court in Adams—a majority of five votes to four. The then Lord Chief Justice, my noble and learned friend Lord Judge, who, alas, cannot be here today, and I were in that minority of four. The majority preferred it to the test of the minority that the claimant should have to establish his innocence. In truth the majority’s formulation is a fudge—indeed, an unprincipled fudge. None of the parties in the case argued in support of it—not even leading counsel who appeared as interveners for Justice. They were all arguing for compensation to be paid to all those whose appeal eventually succeeds. Now no one pursues that absolutist view. Of course, under this fudge, compensation would still be required to be paid even to those who, albeit entitled to succeed on their appeals, can nevertheless be seen clearly to have committed the offence.
I have given various examples of this at earlier stages. Today I shall give just one. Let us suppose that a defendant confesses his guilt and in his confession discloses facts of which only the perpetrator of the crime to which he is confessing could have knowledge. Later, however, on a late appeal, he is able to establish that that confession was induced by, for example, a promise that if only he would confess his guilt he would get bail. Once that is established the confession has to be set aside as one induced by guilt, even though it is self-evidently true as a confession. He is entitled to succeed on his appeal but is he really to be regarded as entitled to compensation, which could run to hundreds of thousands of pounds? I would suggest not.
My third and final point is on certainty. Again, the noble Lord, Lord Faulks, has made this point. I should have said earlier that, alas, I missed the first few minutes of his speech as it never occurred to me, in common with one or two others, that this Bill would be reached at the stage that it was. I apologise for that but I think I heard everything that he said that needed to be heard by somebody supporting his case. The proposed formulation is very far from easy to apply. Perhaps a good illustration of that is the tragic case of Sally Clark—a case about which the noble Baroness, Lady Kennedy of The Shaws, spoke more than once at earlier stages of the Bill. It is a case which raises considerable and understandable emotions. On my reading of that case—I believe this to be correct—the Court of Appeal never went further than to say that on the fresh evidence that had come to light a jury might well not have convicted her. It was not said, in the words of the proposed amendment of the noble Lord, Lord Pannick, that the fresh evidence showed—let alone showed “conclusively”—that the evidence against her at trial had been so undermined that no conviction could possibly have been based on it. Maybe, in the light of all the material, the jury would have convicted; maybe it would not.
If it is said that I am wrong in my understanding of that case, it just goes to show that the proposed formulation will lead, not to the desired clarity and certainty in the law, but to further protracted litigation on this issue. As the Minister said, based on the Court of Appeal judgment, it is perfectly simple for him to form a view —yes or no—on whether, in the light of all the material, this defendant was indeed innocent of the charge and therefore whether or not it was a clear miscarriage of justice in that sense. The elected Chamber rejected this House’s amendment first time round and I respectfully suggest that we should not challenge it again.
Lord Hope of Craighead (CB)
My Lords, I had the advantage of listening to the whole of the Minister’s address with great care. I respectfully say that it was very well put across. However, I remain of the view, advanced by the noble Lord, Lord Pannick, that the Commons amendment should not be accepted. I have spoken on this matter on a number of previous occasions, so I will make a few short points.
I agree entirely with the Minister that the issue before us is what is meant by the phrase “miscarriage of justice”. This still remains in Section 133 of the 1988 Act because in this Bill we are adding a new subsection to try to explain what the basic rule, set out in subsection (1), is all about. Therefore one has to consider how that works out in practice, given the nature of our criminal appeal process. In effect, it is an element of working out the court’s function in the appeal and the position the Secretary of State must take, given the material in the Court of Appeal’s judgment.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, has confirmed that the Court of Appeal does not have to ask itself whether the appellant was innocent: it has to consider whether the conviction was unsafe. No one is suggesting that that should be the test applied when working out whether there has been a miscarriage of justice. The problem with the test which the Minister is now suggesting and which is in the Commons amendment is that it is striving for something which is, in nearly every case, almost impossible to demonstrate. I prosecuted for four years in the course of my career at the Bar and secured a number of convictions. It frequently occurred to me that we—by which I mean the jury, the prosecutors and everyone else who was looking on—were not there. It is so difficult to work out what actually happened: one can only proceed on evidence. The Crown’s function is to demonstrate guilt as best it can on the evidence but it is extraordinarily difficult to work out whether somebody did not commit the crime and put it in a positive way in favour of the accused if you did not actually see what happened when the crime was committed. You have to rely on other people to demonstrate that fact. That is the basic problem with the test being suggested.
In my judgment in the case to which the noble Lord, Lord Pannick, referred, I recorded that when Article 14 of the covenant, from which we take the phrase, was being discussed it was suggested that the test of innocence should be put in to elaborate what was meant by miscarriage of justice, but it was not put in to the final draft. The matter was considered then but it was taken out and we are left with a phrase which we now have to construe and apply.
Without going on any further, I suggest that a better way of approaching it would be to tie the phrase, as carefully as we can, into the way our criminal process works, in a world where there can rarely be absolute certainty. We cannot achieve mathematical certainty in our system of criminal justice: we are not expected to. Because of that, I suggest we take the practical approach embodied in the phrase proposed by the noble Lord, Lord Pannick. I support his amendment.
Social Welfare Law
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Lord Hope of Craighead (CB)
My Lords, it is a very real pleasure to follow the noble Baroness and her very thoughtful speech and to follow the right reverend Prelate. I join with the noble Baroness in congratulating him on his maiden speech. My impression in listening to both of them is that they contribute real value to this debate because they have experienced at first hand the problems that we are talking about. Some of us who are lawyers, such as myself, do not have that privilege, although of course we encounter many of those who are in trouble. But it is the real value of their contribution that needs to be studied very carefully, based on their own first-hand experience of the problems that we are talking about.
As for the report of my noble friend Lord Low, I express deep admiration for what he and his commission have achieved. I confess that I read the report with a mixture of despair and relief, rather like the noble and learned Lord, Lord Woolf, who talked about a mixture of feeling worried and encouraged. The element of despair comes from the appreciation that the report brings of the state in which we now find ourselves. Step by step, we have got into a position of real difficulty, in which so many gaps exist right across the system where legal advice and support are not available. It would be wrong to say that we have sleepwalked into this problem, because so many people have been advising Governments, particularly this one, time and again, that cutting back so much on legal aid, for reasons that we all understand, would add to and create this problem.
The relief and encouragement comes partly from the way in which the commissioners have gone about their work and the integrated approach that they urge the Government to adopt, and also from the various signs throughout the report of what is going on elsewhere in other sectors. The point that I wish to draw to the Minister’s attention is the need in this integrated approach to support what others are doing to fill the gaps.
Let me give one particular example based on my own experience in dealing with students in two of the Scottish universities. I know that the report deals with the position in England and Wales, but Scotland is not all that different; the problems are very similar. One thing that has been growing, both in Scottish universities and certainly in the universities in England and Wales as well, is an appreciation by students of the gaps that emerge and the part that they can play in filling them by providing legal advice where it is needed. There are two particular projects that I know about, one of which was started in 2003 by the University of Strathclyde Law Clinic, which is the largest of these institutions in Scotland, with 195 student advisers, and more recently the Aberdeen Law Project, which started in 2009 and has much the same ambitions, conducting much the same kind of work.
These projects are guided by lawyers within the academic community. They are also funded, to a very substantial degree, by law firms. It is a pro bono exercise. DLA Piper provides funds for the Strathclyde clinic; Pinsent Masons provides funds for the Aberdeen Law Project. This is greatly welcome, for, while the universities themselves would like to provide financial support, it is very difficult for them to do that, given the pressures on their own funding.
There are ways in which the Government can encourage these projects, one of which was demonstrated by the noble and learned Baroness, Lady Scotland of Asthal, when she was in government. She encouraged and participated in an annual awards scheme to student organisations of this kind. It so happened that Strathclyde won the competition in one of the years I was chancellor. She was there, she encouraged what they were doing, and she gave the feeling that the Government were behind what was being done by these student bodies. That is valuable encouragement. It helps those who are thinking of providing funding to feel they are doing something which is in the broad public interest as well as in the interest of the students themselves.
The other aspect of the problem is the work done by the courts. The noble and learned Lord, Lord Woolf, made major strides in simplifying the way in which the courts go about their work. One point, which I particularly emphasise, is the way in which he educated us all in the need for case management, a phrase that I did not encounter in the early days but is now on everybody’s lips, and it works all the way down through the system. It is a means of simplifying issues, working with the litigants in person to be sure that as little time as possible is wasted and people identify the issues as soon as they can.
There is the emphasis in paragraph 5.27 on the need for independent advice. I thought that was a valuable point, partly because I have been serving on a Select Committee on personal service companies, a rather complicated tax matter. Part of the evidence that we have been hearing comes from people who have been trying to use an advice system that the HMRC provides for people who think they are in difficulties. The HMRC says that the advice system is completely independent and that nothing will be communicated to the tax inspectors. People do not believe it, and it is underused. There is, therefore, something to be said for the point drawn attention to in that paragraph—for the Government appreciating that there are independent advisers who need to be supported, as well as government-based advice systems.
The other point worth stressing, as others have done, is the way in which modern technology can be brought to bear to encourage people to seek advice. Younger people than I have apps attached to their iPhones which have access to all sorts of things. I have just acquired an iPhone, and I have been discovering its wonders. Surely there are things the Government could do to increase the accessibility of advice—of knowledge of how systems should be made to work in people’s interests and of the complex system of social benefits. There are avenues to which this report draws attention which are well worth pursuing and should not cost a great deal if proper advice is obtained.
I endorse the point made by the noble Lord, Lord Bach—that there is an opportunity, because of the timing of this report. As he said, we should not let the opportunity go. I would warmly endorse that and all the recommendations made in this excellent report.