Rape: Prosecutions and Convictions

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Monday 14th September 2020 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, a previous Attorney-General asked for my views, as a criminal practitioner, on the failure to get convictions. Can I persuade the law officer’s department that there should be a special trigger mechanism for particular action whenever digital evidence might be an issue? Since consent seems to be the problem, will he also persuade the Attorney-General to instruct the CPS to publish details of how many cases of rape consent is raised in and how many convictions there are in consent cases?

[Lord Keen of Elie (Con) [V]]

My Lords, I am not certain that such data is available, but I will make inquiries to see whether it is or whether it can be collected, in a reasonable fashion. I will advise the noble and learned Lord upon the outcome of that inquiry.

Royal Commission on Criminal Justice

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, we anticipate that the royal commission will be able to commence its work in the autumn, having before it a finalised set of terms of reference. We have to be realistic about how the royal commission will operate. We wish it to report within 12 to 18 months; accordingly, the terms of reference will have to reflect that timescale.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, as a criminal law practitioner for more than 40 years, I warmly welcome the setting up of the commission. The listing and hearing of criminal trials is in a mess and underfunded, and efforts to increase court sittings are belated. Will funding for criminal legal aid be part of the remit of the royal commission?

[Lord Keen of Elie]

My Lords, as I have indicated already, I am not yet in a position to confirm the remit of the royal commission as the terms of reference have not yet been published. Again, I remind noble Lords that we are concerned to ensure that the terms of reference are manageable in the context of our wanting a report within 12 to 18 months.

Crime: Rape

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Tuesday 22nd October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, we recognise the significant importance of support for those who make complaints of all sexual offences, and rape in particular. It is necessary to look at taking forward further the scheme for the giving of evidence under Section 28. It is also appropriate to have in mind the use and application of Section 41 in relation to the potential for examining complainants about their sexual history. These matters have been under fairly constant review since Dame Vera Baird’s study in 2017, followed by the CPS study the following year and, more recently, in work done by the Criminal Bar Association. We do recognise the need for support and consideration in these cases.

[Lord Morris of Aberavon (Lab)]

My Lords, I have been involved professionally in a number of rape cases. Will the House accept the distinction between the small number of cases where the issue is identification and the much larger number where the issue is consent? The problem is that juries are reluctant to convict in those cases. Are the Government satisfied that the problem of non-disclosure of evidence has been solved? Will they provide resources for the CPS to upgrade the pay of prosecutors so that only the best counsel is available and able to prosecute in these very serious cases?

Prosecutions and Sentencing

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Tuesday 3rd September 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, clearly, sentencing decisions are a matter for the independent judiciary, which is of course under a duty to follow any relevant guidelines produced by the independent Sentencing Council. The council produces guidelines specific to particular offences or groups of offences. I entirely acknowledge the points my noble friend Lady Neville-Rolfe makes about the need to complement the increase in policing by ensuring that we have adequate provision in the judiciary and the prison establishment.

[Lord Morris of Aberavon (Lab)]

My Lords, is there not a wider question about the crisis generally in the practice of criminal law, from whom many in the CPS are recruited, because of continuing underpayment for work done? Now that austerity is said to be over, will the Government advocate for more resources to prosecutors and defenders?

[Lord Keen of Elie]

My Lords, we are of course concerned to ensure that the criminal justice system is adequately funded. We do not consider that we are in the midst of a crisis so far as that is concerned. Indeed, we engage with both the CPS and counsel and solicitors engaged in criminal defence work to ensure that they are properly resourced.

Central Courts IT System

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Wednesday 23rd January 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, the reported effects narrated by the noble Lord are not accurate; let us be clear about that. There is no evidence of any cases being adjourned in either courts or tribunals with respect to this issue. In addition, it is not true that defendants have had to do their own DVLA checks. Furthermore, the probation service was affected by the outage but no offender appointments were missed, and the service reverted to paper processes where necessary. The IT systems are back up and working as of this morning with respect to the probation service. There was no impact on the Prison Service, which is in fact dependent on entirely separate computer system.

The cause of the outage was identified as a routing server that had become corrupted, and that has been replaced. It fell within one of our contractors’ systems and, as I indicated earlier, we are going to be speaking to our contractors with regard to that matter. At this stage we do not intend to institute the sort of inquiry that the noble Lord alluded to.

[Lord Morris of Aberavon (Lab)]

My Lords, is it correct that thousands of criminal cases in the courts have been disrupted? The National Audit Office criticised the delay in the IT system installation and said that the objectives would not be reached on time and on budget. Given this warning, are there any penalties in the contractual arrangements between the company and HMG?

[Lord Keen of Elie]

With respect to the noble and learned Lord, it is important to distinguish between two entirely separate systems: the existing system, which suffered the corruption of the routing server, and the proposed new common platform system which is in its testing phase. That is entirely unrelated to the existing system, but is of course connected to the modernisation of the courts system and the case management system, which has been allocated considerable funding at the present time.

With regard to the existing contracts, we are engaging with the provider over this issue. We regret the outage that occurred. Back-up systems did operate. Certainly, I am not aware of thousands of criminal cases being disrupted. I am advised that there is no evidence of cases being adjourned due to the IT issue.

Brexit: Legal Position of Withdrawal Agreement

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Monday 3rd December 2018 Lords Chamber

[Lord Morris of Aberavon]

My Lords, I speak as a former Attorney-General. I adhere to the convention that it is not in the public interest to disclose the fact or the content of the law officers’ advice. However, there have been exceptions, such as the debate on the Maastricht treaty and the exceptional circumstances of the Chilcot inquiry. We are grateful for the 43-page document setting out the legal position, but I ask specifically whether, in the public interest, without going into detail, the Attorney-General has reserved disclosure on any matters that he has advised on. Secondly, will the Minister confirm that there is nothing in the document incompatible with the advice that the Attorney-General has given to Her Majesty’s Government?

[Lord Keen of Elie]

My Lords, I fear that to answer the first question would be to breach the relevant law officer convention, but with regard to the second, let me be clear: there is no inconsistency between any point made in the legal commentary and anything that might or might not have been said in government.

Law Commission: Funding

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Tuesday 10th July 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government’s response to the Law Commission’s recommendations has been extremely good. The commission has produced 228 sets of law reform recommendations. Of those, 65% have been accepted and the recommended reforms implemented in whole or in part by government. In addition, since the introduction of the special procedure for statutory provisions from the Law Commission, we have brought forward eight different Acts through that accelerated procedure.

[Lord Morris of Aberavon (Lab)]

My Lords, has there been an estimate of the extent of the diminution in the quality of the commission’s reports because of lower funding?

[Lord Keen of Elie]

My Lords, I am not aware of any diminution in the quality of the reports produced by the Law Commission over the past few years. Indeed, there is no suggestion that that is the case. Although there have been reductions in the Law Commission’s budget, its anticipated core funding for 2019 remained in excess of its anticipated running costs.

Rape Trials

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Wednesday 6th June 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government are clear that ensuring disclosure requirements are met is vital for a fair trial and public confidence. The Attorney-General is leading a wide-ranging review of disclosure practices and aims to report by the summer. The findings of the review of rape and serious sexual offence cases, published by the Director of Public Prosecutions yesterday, will feed into a wider operational response to delivering necessary improvements in the system.

[Lord Morris of Aberavon]

My Lords, the disclosure of unused material that assists the defence or undermines the prosecution is vital to a fair trial. Does the noble and learned Lord still stand by his earlier reply that we have not gone backwards? Would he like to comment on yesterday’s evidence by the Director of Public Prosecutions, which differs wholly from her bold assertion in January that she did not think disclosure failings would have led to people being wrongly jailed? Where is the failure to grip the situation: the police or the CPS?

[Lord Keen of Elie]

My Lords, the review that was undertaken involved consideration of 3,637 cases in the period between 1 January and 13 February this year. In respect of those cases, 47 were identified where there were concerns about the management of disclosure. However, that does not mean that this was the reason for the discontinuance of the prosecution in each and every one of those cases. There is of course concern that disclosure should be carried out fully and properly pursuant to the legal requirements of the Criminal Procedure and Investigations Act 1996. That obligation lies not only on the police and Crown Prosecution Service but on the defence, which is required within a certain period—28 days—to give a defence statement. That, in itself, indicates where there may or may not be room for further investigation of material that could pertain to the prosecution case or assist the defence. It is necessary for all parties involved in this process to engage in order that it can be properly discharged.

As I indicated earlier, further work is being undertaken by the Attorney-General to deal with this question, which we hope to report upon by the summer. I do not accept that we are going backwards. Technology is going forward, and very quickly indeed. We now live in an environment in which there are vast quantities of social media apps—Instagram, Facebook and the like—that can be contained on one or two mobile devices and which make demands upon the police service, the Crown Prosecution Service and indeed the defence. They did not exist 10 years ago. We are seeking to meet those demands; it is important that we do so.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Keen of Elie]

I am not going to indulge in party politics at this stage; I do not think that that is necessary. We all know the ultimate objective of the Scottish National Party. It is not to have a United Kingdom; it is to break up the United Kingdom and have an independent Scotland. Although Scottish nationalists talk about all these powers coming back from the EU, let us remember that they do not want them. If they get them, they want to give them back to Brussels, because they want Scotland, as an independent country, to remain in the EU—and, if it leaves, they want it to join EFTA and the single market. Therefore they will return all the powers they are talking about if they get their ultimate aim.

[Lord Morris of Aberavon]

The noble and learned Lord has distinguished between “consult” and “consent”, and has described consent as a veto. Does he not accept that over the years the normal use of “consent” by both the Scottish Parliament and the National Assembly has been exercised responsibly, and that there is no basis for that fear? How would he define the word “consult”? What does it mean?

[Lord Keen of Elie]

Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.

I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.

Crown Prosecution Service: Disclosure Procedures

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Monday 29th January 2018 Lords Chamber

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether they intend to set up an independent inquiry into the role of the Crown Prosecution Service and its relationship with police authorities in respect of disclosure procedures in criminal cases.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, following a joint inspectorate report last year, the Attorney-General launched a review of disclosure procedures. This will report in the summer. Last week, the National Police Chiefs’ Council, the College of Policing and the CPS published a joint action plan for disclosure improvement. The House of Commons Justice Committee has now announced an inquiry into disclosure. We have no present intention to institute an additional inquiry.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome what is being done belatedly, but confidence in the criminal legal system in the Crown courts has been seeping away almost daily. Will the action proposed apply also to the magistrates’ court, where non-proceeding seems to be the norm? Since the DPP, who has made some very bold statements, is obviously struggling with the police, with their limited resources, to provide material for disclosure, will the Attorney-General join the Home Secretary in studying what was done in 1998? There was a failure to prosecute deaths in custody cases, so I appointed a senior ex-circuit judge to do an independent review, and he delivered a damning report in two or three months.

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

Transparency of the Parole Board and Victim Support

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Tuesday 9th January 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not going to close down the terms of a review that are yet to be determined. That will be looked at, it will come into the public domain and it will be open to your Lordships to consider whether to press for a wider review. It would not be appropriate for me at this stage to seek to set down the parameters of the review process.

As regards the level of care and supervision, an individual such as Worboys will be subject to a multiagency public protection arrangement supervised by the National Probation Service. I am conscious of the recent criticism made of the probation service, but in the context in which it was mentioned it was not directed at the National Probation Service, which deals with the most serious offenders in the circumstances.

[Lord Morris of Aberavon (Lab)]

My Lords, does the Director of Public Prosecutions still have regular and frequent meetings with the Attorney-General about the non-prosecution or prosecution of particularly important individual cases?

[Lord Keen of Elie]

My understanding is that the Director of Public Prosecutions and the Attorney-General meet on a regular basis.

CPS: Disclosure of Evidence

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Monday 18th December 2017 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, prosecutors are obliged to disclose relevant material that could assist the defence case. That obligation is not determined by issues of cost. The Crown Prosecution Service is considering with the police a recent independent review by Her Majesty’s Chief Inspector of the CPS of disclosure policies and practice.

[Lord Morris of Aberavon]

My Lords, the then chairman of the Bar Council, Ms Heather Hallett QC, complained as far back as 1998 about non-disclosure. I believe I took steps to put matters right. Matters seem to have gone backwards since then. In the light of recent events, will the Attorney-General set up an independent inquiry, headed by a judge, to examine whether disclosure rules are being complied with, to ensure the timely delivery of justice?

[Lord Keen of Elie]

My Lords, disclosure in the context of criminal cases has not gone backwards since 1998. There is no present intention to set up an inquiry of the type referred to by the noble and learned Lord.

IPP Prisoners

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Monday 20th February 2017 Lords Chamber

[Lord Keen of Elie]

The noble and learned Lord raises a complex and difficult problem. It was said previously that this sentencing policy was the legacy of a Labour Government. That is unfair. It was a wrong turning in sentencing policy undertaken with the best of intentions which fell victim to the law of unintended consequences. Successive Labour, coalition and Conservative Governments have wrestled with a simple solution to a complex question. If we were going to resolve this matter as simply as the noble and learned Lord suggests, we would not start from where are at present.

[Lord Morris of Aberavon (Lab)]

My Lords, is it the lack of political will that is virtually interning these prisoners or the lack of resources of the Parole Board? If it is resources, will the Minister seek the help of the Treasury in carrying out a cost-benefit analysis of the cost of incarcerating these prisoners?

[Lord Keen of Elie]

The noble and learned Lord raises a good point. The gateway for these prisoners is the Parole Board and, for the particular reason that we need to deal with this cohort of prisoners, we have provided further additional resources to the Parole Board. As a result, its numbers have increased recently by 49 members and the outstanding cases in this regard listed before it have reduced by about 40% in the period from January 2015 to December 2016.

Judiciary: Independence

Debate between Lord Keen of Elie and Lord Morris of Aberavon

Tuesday 15th November 2016 Lords Chamber

[Lord Keen of Elie]

It is not considered necessary that the oath should be revisited. The oath of the Lord Chancellor is to respect the rule of law, defend the independence of the judiciary and discharge her duty to ensure the provision of resources for the efficient and effective support of the courts. That is the duty that she has addressed and discharged.

[Lord Morris of Aberavon]

My Lords, we all value the freedom of press comment, but when judges are attacked in inflammatory terms and cannot answer back there is machinery in the Constitutional Reform Act for the judiciary to be defended without delay. Here, there was intolerable delay before the Minister spoke. Will the noble and learned Lord invite her to read Sections 3(1) and 3(6) of the Constitutional Reform Act, which spell out her duty in clear and unambiguous terms?