Police, Crime, Sentencing and Courts Bill

Lord Judge Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I think I am probably quite woke, and proud to be so; none the less, I support the broad thrust of the amendment from the noble Lord, Lord Moylan, subject to a couple of caveats. The first caveat is a slightly light-hearted one. As a serial offender, I gently say to noble Lords and friends across the Committee that the overuse of adjectives named for great writers does not always help the cause of human rights. We have all done it: “Dickensian” for socioeconomic rights and “Orwellian” or even “Kafkaesque” for civil liberties. “Chilling” is similar. In fact, an online wit once said of my overuse of these terms: “That Chakrabarti woman finds everything chilling. She sees refrigerators everywhere.” That is just a gentle point about the way we frame this.

I support the broad thrust of this, but the problem is not just about allegations of hate. It is about soft information, as it is sometimes called, or allegations that are not capable of sustaining a criminal charge and should not sit on databases for years and years, or indefinitely. This problem has been growing for many years with the rise of the database state and the potential to hold all sorts of data, even if it never matures into a charge. That is dangerous.

In my previous role as director of Liberty, I saw many cases of this kind. Not all involved free speech. I remember one woman who had allowed her small children to play in the park while she went to a kiosk, and people thought they were unattended. She was cautioned by the police because she was at the borderline, they thought, of neglect, but there was no question of pursuing a charge. None the less, this data sat around for years and was hugely detrimental to her when she sought to work in positions of care.

This is not just about the glorious culture wars that have got everyone to their feet today. It is not about your views on trans inclusion or not, but about whether so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration. Whatever our views on the free speech point, we surely have to agree with procedural point that the noble Lord, Lord Moylan, was right to make clear.

I remind noble Lords that free speech is a two-way street. It is not just about the woke and so-called cancel culture; it is also about protesters who feel that they attend demonstrations and sit on police databases for many years just because they have been caught on CCTV. We in your Lordships’ House would do a great service to the nation if, whenever we consider these so-called culture wars that centre around identity politics and in particular free speech, we remember that it is a two-way street. It is people on either side of very contentious arguments who sometimes want to “cancel” each other, and we should remember that.

My final point is a substantive one about the way I urge the Minister to take this forward. Given that the concern is about not just hate incidents but all soft information that may be held indefinitely, can the Minister’s response today—or on Report, with, I hope, substantive government safeguards—be comprehensive and address not just non-crime hate incidents but all soft intelligence and all police data about individuals that could be to their detriment going forward, whether it touches on free speech rights or other rights such as Article 8 rights to privacy and autonomy? Can this soft information that has been held administratively by the police be on the statute book and brought under proper regulation and control?

[Lord Judge (CB)]

My Lords, the issue is very simple. We surely have to decide whether hate crime and non-hate crime, and all their different manifestations, should be left to police guidance, or whether the issue is far more important than that and should be brought under the process of Parliament—legislative control and legislative process. To me, the answer is perfectly clear: the latter.

Independent Review of Administrative Law Update

Lord Judge Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, a Minister does not decide what his or her powers are. If there is an ouster clause in an Act of Parliament, it is an ouster clause in an Act that has been passed by Parliament. When one is talking about the Fixed-term Parliaments Act, there may be special considerations because of the issue of Section 9 of the Bill of Rights. Generally, however, what we want to consult on in terms of ouster clauses are the two points that I have identified: first, whether ouster clauses ought to be used; and, secondly, if they are used, how to make sure that Parliament’s intention is given effect to, which we do not think is always the case with ouster clauses at the moment.

[Lord Judge (CB) [V]]

My Lords, the consultation process with which we are about to engage is taking place at just the time when the further expansion of executive power has been brought into sharp relief by the measures to prevent and defeat the coronavirus pandemic—measures, let it be noted, created and extended by statute. I therefore respectfully wonder whether it is consistent with the Minister’s accurate observation that judicial review is a

“vital check on Executive power”—[Official Report, Commons, 18/3/21; col. 506.]

even to begin to consider contracting the ambit of judicial review, a diminution in the ability of the citizen to question the exercise of executive power, and limiting the remedies available to those damaged by its misuse.

Domestic Abuse Bill

Lord Judge Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[Baroness Crawley (Lab) [V]]

My Lords, I will be brief, but as my name was on the original amendment I wanted to thank the noble Baroness, Lady Morgan, for her passion and persistence in ensuring that the Bill will now be the vehicle for finally making threats to share intimate images a criminal offence. Thanks also must go to the Government and to the Minister for really listening—not only to the campaigners and those of us who spoke in Committee but, far more importantly, to those many millions of women who have been subjected, and continue to be subjected, to this invidious behaviour.

We have heard today of how an entire town has been sent intimate images of young women from that town. This is a growing crime, as online sites grow and more young people are betrayed and humiliated. As the chair of Refuge put it, changing the law to criminalise threats to share could not come soon enough for those one in seven young women who experience this form of abuse in the UK. This will finally provide them with the recourse to justice that they deserve.

[Lord Judge (CB) [V]]

My Lords, I too acknowledge with enthusiasm and, if I may say so, admiration the dedicated energy of the noble Baroness, Lady Morgan, to resolving this issue and achieving this reform. This is a simple amendment, or will be a series of simple amendments. The clause in question addresses what everybody who has spoken in the past, whether in Committee or at Second Reading, knows is pernicious and malevolent behaviour. It should be criminalised and now it will be; good.

Importantly, if I may just digress, the achievement of this objective by recasting Section 33 of the Criminal Justice and Courts Act 2015 means that every potential victim will fall within the new protected ambit of the offence, whether or not she—it is, of course, nearly always she but sometimes may be he—forms part of any domestic arrangement or personal relationship, or none. They may be a total stranger. Behaviour like this causes distress, anxiety and offence by whomsoever and in whatever circumstances it occurs.

In the context of the debate we have just had on Amendments 46 and 47, it would apply to someone in the position of a carer. I wonder why that is strange in the context of the debate that has just happened; for the purposes of this amendment, it is not strange at all. I thank the Minister for reflecting, for accepting that there is no time to waste and for an approach which will be welcomed on all sides of the House.

I will add a footnote: like the noble Baroness, Lady Morgan, I shall hope to continue to examine the ingredients of this offence, and in particular the state of mind currently required on the basis of the new clause inserted by Amendment 48—old Section 33 of the 2015 Act—just to make sure that it satisfactorily addresses how strong an intent is required. I feel that having a positive, specific intent to cause distress is not appropriate. It certainly would not be appropriate for someone who had acquired the intimate photographs, perhaps without paying for them if they were sent through modern technology, and just decided to publish them. I think “intent to cause distress” is too strong, but that is a detail for today. We will come back to it and trouble the Minister about it, no doubt, in discussions.

Domestic Abuse Bill

Lord Judge Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

The main issue that I want to cover, however, is that while I welcome the Law Commission review of image-based crimes, it could take many years to come to fruition. Other noble Lords with their names on this amendment have mentioned the review. Even after that process is complete, the Government will need to review the recommendations, respond to each in turn and decide whether to accept them. That will take time —and then we will need to find time in the parliamentary schedule. This Bill, which has so much support in your Lordships’ Chamber, has been almost four years in the making. While the Government insist that we wait, how many more women are expected to suffer?

[Lord Judge (CB) [V]]

My Lords, I apologise for unavoidably missing Second Reading. I will only add something that is based on my own experience. We are dealing with the instruments of power. The more personal they are, the more powerful they can be; the greater their use, the greater the risk of their misuse. I approach this amendment—the spirit of which I strongly support—on the basis of experience, or experiences, of the way in which all the horrors and indignities can now be heaped on victims in a non-domestic situation: it is rape by strangers, pervertedly using modern technology to add to the humiliation of their victim by taking intimate images before leaving them to all their harrowing distress.

What is the purpose of those photographs? Is it to humiliate, or to threaten? They can be circulated to others with potentially rather perverted sexual titillation in mind, who themselves will have the power to threaten the victim with yet further circulation of the images. Such threats are appalling and should be criminalised. I hear the Minister thinking, immediately, “But this is a Domestic Abuse Bill.” There is a link, however, between that sort of behaviour and the behaviour to which I now come.

I am assuming for present purposes that, far from being rape cases, the images which we are now discussing are based on participation in the taking of images at times of cherished joy by two perfectly happy, willing people. I know that is not always the case, but I am taking it at the other extreme end. They are taken consensually, on the basis of trust—that they will remain private and personal, that they will never be circulated, that the power they give to one participant over the other will never be abused, whether via circulation or threat of circulation, and trust in particular that they will never be abused as a weapon of power, pressure, or control. I emphasise that to me, a threat alone constitutes a grotesque breach of the trust which was once reposed in the other half to the relationship. It leaves the victim with an impossible choice to make: to risk circulation—how awful—or give way to what may be utterly outrageous demands by someone who was once trusted.

We criminalised the sharing of intimate pictures. Section 33 of the 2015 Act is a perfectly simple piece of legislation. We do not require the Law Commission. We do not require very much time to be able to adapt the Section 33 provision so as to make criminal the circulation and the threat to circulate or share images such as this. It is simple and obvious.

[Lord Lucas (Con) [V]]

My Lords, I add my name to those saying that this is a change we should make, and now. I would like to be sure, which I am not at the moment, that the wording will cover an image which does not actually exist but is merely asserted to exist. On some of these occasions, a recording will have been made or said to have been made without the victim’s knowledge, but she may well believe that the allegation is true because it is a believable one. Under those circumstances, it should be clear that this offence is activated. I would also like to understand better how one can consent to a threat. If it is a threat, what does consent look like? What would it take for someone to consent to a threat? How would that be phrased; how would it work? Is “publish and be damned” consent? If not, what would be?

Courts: Resourcing and Staffing

Lord Judge Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, there has been an awful lot of trepidation about, and I join in that. My trepidation is very simple: I have sat and listened to a number of speakers who have said everything I wanted to say and said it more than once, so I am faced with the dilemma of whether to sit down.

On the one hand, I have had many conversations with the Lord Chancellor’s Department when saying something once seemed to fall on chronically deaf ears, and saying it twice, three or even four times never seemed to do the trick either, which is an encouragement to me to say everything I was going to say and therefore have it repeated. On the other hand, I see old friends here, including the noble Lords, Lord Faulks and Lord Thomas of Gresford, and I know perfectly well that if they had been the seventh speaker in a line of distinguished counsel and were going to say what everybody had said before, a few years ago I might very well have said, “Lord Thomas, do we really need to hear that again?”. Torn as I am, and full of trepidation as I continue to be, I will compromise and talk about only one thing, which the presence of the noble and learned Lord, Lord Mackay of Clashfern, who has just arrived, entitles me to do. That is the position of the High Court Bench.

I was asked to go and see the noble and learned Lord, Lord Mackay, way back in 1988. When he suggested that he might recommend me for appointment to the High Court, I thought that he had paid me an astonishing compliment and that what he was in effect offering me was a considerable honour. I also remember the conversation. I am sure he does not, and I hope the House will not mind this little reminiscence, because it was an example of the noble and learned Lord at his most amazing best. As the conversation was unfolding, I muttered slightly under my breath, as there was a little problem in that I had only recently been elected leader of my circuit. That gave me pause, to which the noble and learned Lord said, with all the wisdom and humour that he is notorious for, “Mr Judge—Igor—you are not really saying, are you, that there is nobody else on your circuit who could take on the role of leader of the circuit?”. Of course I had to deny that, as my circuit was fully adorned with people able to do it, so I accepted the appointment.

The situation that applied when I was appointed and for many years after, and the sense of honour that went with appointment to the High Court, have largely disappeared, for a number of reasons, some of which have been discussed. One is that I was tapped on the shoulder. I never made an application, I did not fill out a form and I was not interviewed. Presumably the Lord Chancellor had taken account of the way I did my work and everything about me—how I had been sitting as a recorder and so on—but I never made an application.

Now, it is not the application process alone, and there are gazillions of reasons why different people from the very brightest parts of the legal profession—in which I include solicitors as well as barristers—do not come to the High Court Bench. It does not matter what the reasons are, but there are many of them. However, reinforcing what the noble and learned Lord, Lord Woolf, said earlier, I have reason to believe that not every vacancy in the High Court Bench has been filled. That is not to say that there have not been many applicants—there have—but, if we are to maintain the standards that we require, only the very best will do, and we cannot have a deterioration in the quality of the High Court Bench as a result of simply putting bottoms on judicial seats.

Pause, and add this. We are losing good—admirable—judges at High Court and Court of Appeal level not merely because they have come to the age of 70, as to which I adopt everything that the noble and learned Lord, Lord Brown, said. People are retiring before they have got to 70, before they have attained the full pension that they would be entitled to. Losing people there itself tells the story. Why on earth are people retiring? It is a fascinating job. It is a wonderful responsibility. It is not always easy, but it is a remarkable opportunity to do something yourself in exchange for the joys you have had from your profession.

We have to find 15 new High Court judges next year. Over the next three years, the best estimate that can be made is that we will need about 40. They do not grow on trees. Unless the arrangements for appointment to the High Court Bench are addressed, and urgently, and whatever may be needed is provided to attract the brightest and best, we will suffer a steady diminution in its quality.

At the risk of repetition, these are the judges who decide whether the Government or large parts of our system have been acting unlawfully or lawfully—it is the rule of law. These are the judges who the Rolls Building, the commercial court and the Chancery Division have been attracting because of the quality of justice that is offered there—in particular, the independence of the judge and his or her integrity. When I retired, the sheer import to us of wealth through having a first-class legal system was worth not far short of 3% of gross domestic product. Let us not forget also that the most sensitive and difficult of trials—of terrorist cases and profoundly troublesome murder—are tried by a jury with High Court judges.

We cannot afford any diminution, yet we cannot afford not to fill these spaces. That problem has crept up on us unseen and unnoticed, except that we now know of distinguished men and women at the Bar who will no longer apply for a job of the kind that the noble and learned Lord, Lord Mackay, offered me all those years ago. It is a problem of which the present Lord Chief Justice is acutely aware. We have a new Lord Chancellor. We have a new chairman of the Appointments Commission. I fear they will have to work very hard and urgently to resolve the difficulty.

Legal Aid

Lord Judge Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Judge (CB)]

My Lords, I begin with an apology. I am afraid that I cannot stay for the entire debate. I have a commitment with the Constitution Committee that means that train and plane will take me to Edinburgh tonight. I apologise to the House, as I have apologised to the Minister.

In the early 1960s I went to have a cup of tea with a High Court judge, hoping to impress him. He made me sit in the back of the court. Over the cup of tea he said, “This is a wonderful system, isn’t it?”, so I said inanely, of course, “Yes, certainly, my Lord”. He said, “Isn’t it absurd? I’m trying a case in which £75 is at stake, two insurance companies are battling over it and two of the most distinguished QCs in the country are arguing it. Next week I go out to try crime. Any fool can do that”. The implication was plain. He went on: “I didn’t get a brief of any kind until I’d been in practice for three years. You’re very lucky. The new arrangements for criminal legal aid will make a great difference and it’ll make a difference to the system”.

I have not time, beyond commending what I have heard so far, to go through all the various facets of this but, at heart, have we not got to recognise that it actually matters whether we lock people up for things they have not done or fail to lock up people for things they have done that they are proved to have done, and that the future of every single child matters when its parents are in dispute? We are talking about whole lives that lie ahead.

I am going to talk about crime because of a great brain drain to the criminal Bar. We see bright, intelligent men and women who have committed themselves to qualification, to training, to pupillage, to finding a tenancy and to practising for 10 years who are now leaving the profession. It is not that they want to make a lot of money but they do want to make a living. They have responsibilities and they want to meet their responsibilities. They are going. Where, I ask, is the future crop of Queen’s Counsel to come from, Queen’s Counsel available to be briefed by both sides—the defence and the prosecution? Where, I also ask, is the future crop of criminal judges to come from, men and women who have had experience of years in the criminal justice system and who are regarded as competent enough to be appointed to the Bench? For those of us who worry about these things, perhaps the answer is the future students.

In the past three or four years, for a variety of reasons, I have spent many hours with students from famous universities and universities which are not so famous. They want to do law; they want to practise in the legal profession. Being young—not just because they are young—they are enthusiastic. Wonderful—but when you ask them what sort of law they want to do, they do not mention crime. I can think of about half a dozen, perhaps fewer, who have said to me with a willing smile on their face, “I am going to do crime; I think it really matters”. The overwhelming majority say they want to do commercial or administrative law, or this, that or the other, and when I say, “But what about crime? Locking people up for things they have not done or not locking people up for things they have done matters”, the smile is more wistful and slightly patronising—I do not know what the real world is like. They are not going to do it.

The quality of advocacy matters. After all, we run an adversarial system and are proud of it. An adversarial system is no better than the advocates who do the adversing. The result is—the signs are there to be seen already—our criminal cases are taking longer and longer. The administration of justice cannot be as well done. If you bear in mind that every case that takes longer means that a defendant, sometimes in custody, is waiting for his or her case to come up, you will understand that justice is being damaged. If we go on the way we are doing, 25 years or so from now we will be looking around for the diverse judiciary that we want. We will be going back to the days when to practise at the criminal Bar meant that you came from parents who were reasonably prosperous and who could support you. The young man or woman with no such advantage cannot afford to start at the criminal Bar. I am really asking no more than this: can we please recognise that what was the future in the early 1960s should not become a footnote in history?

Criminal Bar: Funding

Lord Judge Excerpts

Thursday 15th January 2015 Grand Committee

[Lord Judge (CB)]

My Lords, I declare an interest as treasurer of the Middle Temple last year; my intervention in this debate reflects that experience.

In some ways what I am going to say is entirely repetitious, but it is worth drawing public attention to the fact that for many years now the Inns of Court have been dedicated—that is the word—to ensuring that no one should be deterred from entering the profession of barrister on financial grounds. The fact that they or their families may be financially humble was not to be an obstruction. The end result has been extremely successful. The way in which the Middle Temple achieved that—the same process applies to all the other Inns—is that the large majority of the money we have each year is spent on scholarships. Last year we spent in the region of £900,000, which is much the biggest expense we have. The objective: to get every boy or girl of talent who wishes to come to the Bar through the expensive process of getting to the Bar if they are good enough to do so. Nowadays we even have scholarships, chosen on merit, but the funding that is provided for the scholarships reflects the financial needs of the individual concerned.

The take-up has been very great and very successful. My time as treasurer was spent having a good deal of contact with some exceptionally bright young men and women who wish to make a career at the Bar. However, there is one subject on which it is extremely difficult to conduct an exchange with them: what about crime? These are not greedy young men and women; many of them are inspired by a wish to see that the administration of justice works and that they play their part in it as advocates. What about the possibility of an innocent man being convicted—somebody spending years in custody? What about the possibility of a guilty man escaping justice when he richly deserves to be convicted? The same of course applies to women, but there are far fewer women defendants. This matters, and when you discuss it with them, they see the point, but many of them say, “There is no point—there’s no future in the criminal Bar. Look at what’s happened to it in the last few years”.

If you forget the cuts which have already been described by noble and learned Lords—and I am not forgetting them—there are no pupillages in criminal chambers, or very few of them, therefore what is the point of even starting to try to find a non-existent pupillage? Those young men and women have already committed themselves to the Bar and many of them will be called. The reality is that in the present climate, very few of the very best will do criminal law.

We are having a debate at the Middle Temple about whether we are spending our money wisely, as so much of it is wasted. So much of it goes to people who in the end cannot find a pupillage or, ultimately, a tenancy. We are looking at the possibility of reducing the amount of money that we give to boys and girls to get them called to the Bar in order to provide more money to support the young men and women who have got to the Bar and who have a pupillage in criminal chambers, and who then have a year or two in criminal chambers in which they hope to make enough just to cover the expenses.

That debate will take place, and it will have to recognise that if we adopt that process it will inevitably reduce the money available to encourage young men and women from a humble financial background to even try for the Bar. I think that that is a very sad possibility. When we are considering the impact of this, let us be in no doubt that if we do so the pool of talent will be reduced and the quality of talent will be diminished. The national asset identified by Sir Bill Jeffrey will be dissipated. Being called to the Bar and practising at the criminal Bar will become a matter of means, rather than merit. That is a shocking possibility.

The long-term impact has already been described by noble and learned Lords. The results in criminal trials will be affected; trials will take longer; and trials will take longer to come on. That means that defendants will wait longer for their trials and witnesses will have to wait longer and longer before they can give their evidence, in many cases in very distressing circumstances. At the same time, the long-term future of our efforts to ensure a more diverse judiciary—that is to say, a judiciary coming from every element of the citizens of this country—will be undermined. In 20 years from now, young men and young women from a financially humble background will not be available as candidates for judicial appointment. That will be to the public disadvantage.

Criminal Justice and Courts Bill

Lord Judge Excerpts

Wednesday 30th July 2014 Lords Chamber

[Lord Goldsmith]

I utterly support everything that has been said in opposition to this clause but I want to deal with it from a slightly different perspective—from a government perspective. When I was in office I was responsible for many of the judicial reviews that were taken against the Government, either dealing with them myself or supervising and watching other advocates deal with them. I also from time to time made interventions, a subject to which the noble and learned Lord, Lord Woolf, referred. I hope that the Minister will take on board the important point that the noble and learned Lord has just made and take it back to his colleagues. This is public law and an area where the decision will affect many others. I often found, in cases where there was an intervention, that it was because of the intervener that the real issue emerged. That was often because it was the noble Lord, Lord Pannick, who was making the intervention—my heart often sank when he came up because I knew we were in for a tough fight. However, I knew that the real issue would be there and that, as the noble and learned Lord, Lord Woolf, said, the implications for third parties would be properly brought forward and understood. That is critically important when a court is making a decision.

The noble Baroness, Lady Lister, said that the Government are in listening mode, and I hope that they will listen on this. As a young barrister, I recall being told by a senior official from the Treasury Solicitor’s office when I said, “I hope we win this case”, that the Crown “neither wins nor loses cases; we simply clarify the law”. As an ambitious young barrister, that was not my approach to things, but it is not actually a bad approach. The Government should care that the law is clarified and that it is clarified in the best possible way. That will often require interveners, who will make sure that the right issues and the proper arguments are brought forward and that the full implications are understood. I cannot see any reason for this clause being there other than to chill such interventions. That would be a very bad thing for the course of justice and I hope that the Government will think again.

[Lord Judge (CB)]

My Lords, I endorse, from the point of view of England and Wales, what my noble and learned friend Lord Carswell said about his experience at first instance and in the Court of Appeal in Northern Ireland. On one view of the clause, the Supreme Court is being discriminated in favour of. The Supreme Court consists of five, seven or nine of the brightest legal minds in the country—in the whole country. One judge sitting alone at first instance, or three judges sitting in the Court of Appeal, do not have that same intellectual power. It is immensely helpful to the judge or to the Court of Appeal to have an intervention, leave for it having been granted by somebody who knows something about issues which might have been overlooked.

[Lord Mackay of Clashfern]

My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.

I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.

The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.

Legal Systems: Rule of Law

Lord Judge Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Judge (CB)]

My Lords, I shall not disclose confidential conversations that I have had with the present Lord Chancellor nor say anything that might lead to the impression that I am disclosing private conversations, so I shall be reticent. Instead, in six minutes, I propose to cover 800 years of history, and I hope your Lordships will see why.

We are going to celebrate 1215. We know what we are celebrating, do we? We are celebrating no punishment without trial, but deeply significant and frequently overlooked is clause 61, which states that the King is subject to the law. In the olden days the King made his oath and he accounted to God for whether he had obeyed it. As a result of Magna Carta, he had to account on earth. If he failed to obey the law as declared in Magna Carta, the barons and everybody else were absolved from their oaths of fealty. In the 1350s, due process was introduced. 1610 is the first time that I have found the rule of law actually appearing—it appears in the protest in the other place. In the 1670s, independence of the jury was established, and in 1689, the independence of the judiciary.

In the mean time, another strand was going on. 1616 was the year of the founding of Virginia, in which the charter provides—it is called the Great Charter—that citizens who went to Virginia would have the same rights there as if they were still living in England. And then, most importantly, in the early 1700s, a clear decision was made: unless the country had an existing system of law, whenever there was a new colony, British law would apply. Hence, in 1765, when Parliament passed one of the more foolish Acts that it ever passed, the Stamp Act, the American colonies decided that they had had enough and we ended up with a rebellion.

May I just pause? No punishment without trial; independent process for decision-making; due process; equality before the law; the rule of law—they were exported from this country. There are many facets of imperialism which are open to question, but if you were to go now, as I have been in the past few years, to the annual Commonwealth Law Conference, there gathered together are men and women, lawyers and judges, from the entire Commonwealth. They will criticise us for this and comment adversely for that, but the heritage of the rule of law is something for which they hold us in affection. When we discuss, as we do, the problems faced by other Commonwealth countries, or one or two Commonwealth countries or around the world, they look to us not in any sense of profound respect because we are British, but because, in a sense, we inspired some of these ideas which now matter to them.

It is not entirely accidental that, when you look at your television screen—if you do—to see the trial of Oscar Pistorius, the judge trying the case may not be wearing a wig, but she is wearing the identical robes that a High Court judge out on circuit trying a murder case would be wearing in Birmingham, Manchester, Liverpool or Cardiff. It is a very important living tradition in which the United Kingdom still holds high authority. I must add that the Australians think that they are now the repository of the common law. The Australians—I say with great respect to them—never fail to make a claim when they can. They think that our grasp of the common law has been weakened, if I may say so to the noble Lord, Lord Lester, by the contaminating effect of the European convention.

There is one point that I want to make which perhaps will not be obvious, on judicial training. This is one example, and it is only one, of the value of our system. We have visits from all sorts of countries to the Royal Courts of Justice. I do not mean a social; I do not mean looking around the building and having lunch with the judges; I mean a serious visit to find out how we do this or how we do that. The Judicial College, as it now is, welcomes people from all over the world who come to learn about training. More importantly, they ask the college to send men and women judges to train the trainers in their countries, or to train their judges. The topic, largely, is judicial ethics and conduct. The countries include Russia, Rwanda, Nigeria and Pakistan. This is part and parcel of the respect in which our system is held. It is comforting that the European Commission conducted a huge investigation into judicial training throughout the countries of Europe and came to the conclusion—it is a nice thing to be able to say—that the largest number of best practices were to be found in the United Kingdom and our Judicial College.

Can we please not take any of this for granted? The quality of our judicial training depends on the judges who do it. The quality of our entire system depends on attracting high-quality men and women to the judicial Bench. If we take it for granted, we will lose it.

Prisoners: Indeterminate Sentences

Lord Judge Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Judge (CB)]

My Lords, this debate has highlighted the malign contribution to the problem that we are discussing today of Section 229(3) of the Criminal Justice Act 2003. The court is obliged to make an assumption of dangerousness on the basis of one conviction, which might of course be something dreadful such as rape or murder, where the dangerousness speaks for itself, but might also include, among the more than 100 cases that my noble friend Lord Wigley identified, a voyeur—that is, a peeping tom; exposure—that is, a flasher; or indeed, and I do not make this point facetiously but to underline the absurdity of the legislation, somebody who has sexual intercourse with a corpse, who might be somebody who needs rather a lot of assistance and psychiatric help.

The lesson that the legislation should show us is the absurdity of anything that seeks to bind a sentencing judge to make a decision that is based not on evidence but on diktat. An evidence-based decision about what an appropriate sentence should be is the only way in which justice can be done. This legislation has been put right and we are all grateful that it has. The court still has to assess dangerousness. There are still occasions when the court will decide that an individual defendant should never be released because he—or, very rarely, she—represents such a serious continuing danger.

I do not think that the judiciary would be deeply concerned about any interference with constitutional principle if we had a look at all the cases of those who are still subject to imprisonment for public protection, when the transcript will show that the judge made the order because he was in effect compelled, or felt that he was compelled, to do so, or by the application of the powers that have been given under Section 128 of the recent legislation.