Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(11 years, 4 months ago)
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Lord Lloyd of Berwick (CB)
My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.
The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.
Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.
There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.
I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I add only this to the point made by the noble and learned Lord, Lord Lloyd, in answer to my noble friend Lord McNally’s response. Not only is the Joint Committee on Human Rights composed of Members of both Houses, but members of all parties agreed unanimously on this report. My reasons for supporting the amendment are threefold. First, it is a matter of simple humanity. Secondly, I agree again with my noble friend Lord Lester and the noble and learned Lord, Lord Lloyd, that I do not believe the decision of the Court of Appeal in McLoughlin has put the current position in English law beyond doubt in the light of the clear decision of what is required by the Grand Chamber of the European Court of Human Rights in Vinter. In any event, it is for Parliament to make the law clear on this issue. Thirdly, our obligation to honour our treaty commitments is an absolute one that must not be shirked.
My first point is the point of substance, independently of the convention: a whole life tariff without the prospect of review is incompatible with a humane approach or human rights-based approach to punishment. I remain firmly committed to the principle that one of the primary purposes of punishment is rehabilitation. This is embodied in statute law by Section 142 of the 2003 Act, which is the very Act on which whole life sentences are based. That provides, under the heading “Purposes of sentencing”, that:
“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing”,
the third of which is;
“the reform and rehabilitation of offenders”.
The imposition of a whole life order without any hope of release on rehabilitation grounds is incompatible with that statutory purpose of sentencing. It does not follow that a whole life tariff cannot be imposed by the sentencing court, but it does follow that, when sentencing, a judge should know and the offender should know that there is some prospect at least that in exceptional circumstances there will be a power to enable the offender’s release other than on purely compassionate grounds. Of course, it is understandable that in the case of the most heinous crimes the purpose of rehabilitation comes low down the list, but the absence of any possibility of review except on compassionate grounds, interpreted in the “Lifer Manual” as being, effectively, only in the case of terminal illness, removes hope completely in a way that is inhumane.
My second point is one that has been made: that the judgment of the Grand Chamber in Vinter was unequivocal. The court was absolutely clear that the effect of such an order is that a prisoner cannot be released other than at the discretion of the Secretary of State. I urge on the House the point made by the noble Lord, Lord Pannick, that the Secretary of State should not be the decider. There should be an independent body. That release would occur only on compassionate grounds under our statute. The court therefore held that a whole life order of imprisonment violated Article 3, which prohibits inhumane and degrading treatment and torture.
The United Kingdom judge, Judge Mahoney, emphasised that states were free to choose the means whereby they fulfil their obligation to “abide by” the Grand Chamber’s judgment in relation to Article 3. The Court of Appeal’s decision in McLoughlin leaves the position unclear, because the Court of Appeal appears to have held that the existing law permits release on other than compassionate grounds, contrary to the statute and to the finding of the European Court of Human Rights in Vinter. Whatever the Supreme Court may or may not do with McLoughlin, it is, I suggest, now for us in Parliament to make it clear what the law is in this crucial area and to do so in a way that unequivocally honours our treaty commitments.
Lord Marks of Henley-on-Thames
My Lords, the purpose of this amendment is quite simply to remove the power proposed in the Bill by Clause 6(3) to provide that the power to impose an electronic monitoring condition be mandatory. Amendment 14, which is also tabled in my name, is consequential upon Amendment 9.
The Committee will no doubt quite understand that the effect of subsection (2) is to amplify and explain the Secretary of State’s power to impose an electronic monitoring condition on the release on licence of prisoners. That is a desirable and sensible condition to be imposed where appropriate. The idea that by subsection (3) a new Section 62A is added to the Criminal Justice and Court Services Act 2000 giving the Secretary of State power by order to make it compulsory to impose an electronic monitoring condition evades explanation, I regret to say. The power under Section 62 already gives the Secretary of State power to make rules about the conditions for the imposition of such a condition. I simply invite the Minister to explain why the fetter on the Secretary of State’s future discretion is needed.
There may be cases where an electronic monitoring condition is not required or is inappropriate. I take as an obvious example the case of a prisoner who is disabled or is to be hospitalised on release. That is recognised in Section 62 as it stands. Making an electronic monitoring condition compulsory seems a retrograde step depriving a Secretary of State who brings it in by order and any future Secretary of State of the power or the right to exercise discretion not to make such a condition in appropriate cases. The amendment is a simple one, and the issue is a simple one. I beg to move.
The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)
My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.
Lord Ahmad of Wimbledon
Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.
Lord Marks of Henley-on-Thames
My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.
My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.
New Section 62A provides:
“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.
The description of the order-making power states:
“An order under this section”—
which is an order that the monitoring condition power “must be exercised”—
“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,
and may,
“make provision generally or in relation to a case described in the order”.
It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.
Lord Ramsbotham
My Lords, in supporting my noble and learned friend Lord Brown and saluting my noble and learned friend Lord Lloyd on his determined and tenacious momentum on this issue, I want to say just one thing. I am amazed that the Government are not tabling this amendment. As the noble Lord, Lord Wigley, mentioned, £40,000 a year for 773 prisoners is £35 million per year. If you have an overstretched and underresourced Prison Service, surely it makes sense to examine where you could make savings to put the money to better effect, rather than spend it on prisoners who should not be there. I fail to understand why, in the face of all the arguments, all the legal statements and all the evidence, plus the legislation passed in 2012, the Government have not taken the common-sense step of approaching this forcefully themselves.
Lord Marks of Henley-on-Thames
My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.
The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.
Lord Beecham
My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.
The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.
The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?
Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?
There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.
I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(11 years, 4 months ago)
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(a) prosecution would not be in the public interest, or(b) prosecution for the offence would be inappropriate having regard to the circumstances of either the offender or the offence.”
Lord Marks of Henley-on-Thames (LD)
My Lords, the purpose of these amendments is twofold. The first purpose is to widen the discretion to give the cautions allowed by Clause 15, which, as your Lordships will know, is headed, “Restrictions on use of cautions”. I preface what I say by making it clear that I fully accept that it is desirable to be reasonably restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt. That is of course particularly important where the offence concerned is a serious one. Yet the scheme of the Bill is to permit a caution only if there are exceptional circumstances relating to the person or the offence in three categories of cases.
The first category is in the case of indictable-only offences, where,
“a constable may not give the person a caution”,
unless it is,
“in exceptional circumstances relating to the person or the offence”—
I will call that the “exceptional circumstances” test—and,
“with the consent of the Director of Public Prosecutions”.
The second category of offences is of those triable either way which appear on a list of what one would expect to be the more serious offences. That would meet the “exceptional circumstances” test but it would be the constable who gave the caution and there would be no need for the consent of the Director of Public Prosecutions. The third category would deal with all other triable either-way offences—that is, those not on the serious list—and to offences triable summarily. The “exceptional circumstances” test would apply in those cases only to repeat offences: that is, offences that are similar to an offence for which the offender has been convicted in the previous two years. That leaves cautions available on an unrestrictive basis only in respect of those less serious either-way or summary offences which are, effectively, first offences of their type.
I suggest that the “exceptional circumstances” test is too restrictive; “exceptional” is a very strong word. An offence is not exceptional, for example, where it is a minor offence of its class or because the circumstances in which it was committed are otherwise such that a prosecutor might reasonably take the view that more harm than good would be done by prosecution. Dealing with the circumstances of the person, such circumstances would not be exceptional if a former recidivist is well on the way to rehabilitation and a repeat minor offence can be seen as an isolated lapse, where a prosecutor can reasonably and responsibly—and presently often may—take the view that a prosecution would serve no public purpose.
I start on these amendments from the position that there is no reason to undermine the traditional test for prosecutors and not to respect that test. That test requires, first, a likelihood of conviction and it is generally satisfied where there is an admission, as it is a precondition to giving a caution set out in this clause. However, the test also requires the prosecutor to be satisfied that a prosecution is in the public interest. I cannot see why, if that second-limb test is not met—so that a prosecutor does not think a prosecution is in the public interest—even in the absence of exceptional circumstances, the right to administer a caution should be removed and a caution should not remain within the range of possible actions to be taken where there is to be no prosecution. I suggest that there may be many cases—perhaps fewer, I concede, in the indictable-only category—where there has been an admission and a prosecution is inappropriate, and where a caution would nevertheless remain a sensible disposal. In such cases, I see no reason why a caution, which is often an effective disposal, should be available only in first-time summary offences unless the very high hurdle of exceptional circumstances can be surmounted.
The second reason for these amendments is that the decision-maker being provided for is, I suggest, wrong. The Bill provides, first, that the decision-maker in any indictable-only offence is to be the Director of Public Prosecutions, and that in any other case the decision-maker is to be the constable giving the caution. I suggest that the Bill has this wrong in both categories. Surely cautions should not generally be a matter for the DPP, even in indictable-only cases. It is of course likely that, even in indictable-only cases, a decision to caution instead of to prosecute will be taken in cases at the less serious end of the spectrum for that class of offence. It is surely not necessary that the DPP should be involved in a decision to caution in that case, wherever it occurs.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I understand that I am speaking after my Front Bench friend, but I want to make a couple of points. I understand from the noble Lord, Lord Marks, that the general intent of this group is to lower the hurdles by which cautions would be administered as a whole. He set out very clearly a different approach, but I think it is right to say that it is a lowering of the hurdles as a whole. As he said in his introduction to the amendments, we have seen a reduction in the number of cautions which have been administered in recent years.
I want to make a point that I have made in other contexts. The Government have set up scrutiny panels to review the appropriateness or otherwise of cautions that have been put in place. I thank the Minister for writing to me about this scheme. There are various pilot schemes which are following models in different parts of the country. They are in their very earliest stages and do not cover the whole country. Therefore my question for the noble Lord, Lord Marks, is about whether it is a bit premature to bring these sorts of amendments forward, when we do not have a proper answer to the question about whether the scrutiny panels are properly reviewing cautions and whether the group of people who sit on those scrutiny panels are satisfied that cautions are being appropriately administered. We do not even know exactly how those scrutiny panels will report their findings, let alone what those findings are. I understand that this is a debating point and that these are probing amendments, but I wonder whether putting forward this alternative approach is a bit premature.
Lord Marks of Henley-on-Thames
I invite the noble Lord to deal with the proposition that his question ought to be referred to the Minister. Clause 15 is extremely restrictive of the use of cautions, and if it is premature to reform the rules for the use of cautions or the regime under which cautions are administered, as the noble Lord suggests, it is surely premature to reform it in the very radical, restrictive way proposed by Clause 15. The noble Lord is right to suggest that my amendments reduce the restriction, but at the same time they nevertheless preserve some restriction. The radical amendment is the new clause.
Lord Ponsonby of Shulbrede
I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.
Lord Kennedy of Southwark
Could the Minister reflect on the comments that he made earlier? I am sure that we will come back to this on Report. He talked about exceptional circumstances and the noble Lord, Lord Marks, talked about the public interest, but we need a bit more information rather than just saying that these are operational decisions. We may be poles apart here, or it may be nothing at all, but I want to test that further. Perhaps we can come back to that on Report.
Lord Marks of Henley-on-Thames
I suspect that the noble Lord, Lord Kennedy, has hit on the heart of this. I agree with my noble friend the Minister that it might have been sensible to deal in this group of amendments with Amendment 25 and the subject of the level of police officers. Perhaps, left as it is, we will deal with it later.
I suspect that my noble friend’s answer has not dealt with the gap that may exist between a prosecution that a prosecutor takes the view is not in the public interest and a case in which there are no exceptional circumstances, so that a caution is not available. My suggestion to the Committee is that there ought to be a choice between a prosecution on the one hand and a caution on the other. My noble friend has not dealt with the case whereby a prosecution is not in the public interest and a caution is not available under this clause because exceptional circumstances are not satisfied.
The other suggestion that I invite my noble friend to consider before Report is whether the test of exceptional circumstances, which the noble Lord, Lord Kennedy, mentioned, and which is dealt with in a number of cases relating to different statutes, is not simply too harsh, and that “contrary to the public interest” or “inappropriate prosecution” is a better test. But with those observations and knowing that my noble friend will consider it, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, as I suggested a moment ago, this amendment deals with matters that we dealt with in the previous group. It would omit the provision that it is,
“for a police officer not below a rank specified by order … to determine … whether there are exceptional circumstances for the purposes of”,
Clause 15. Therefore, the amendment really goes with the amendments that remove the requirement for there to be exceptional circumstances. It also goes with the view that I expressed in introducing the previous group of amendments—that it really ought not to be simply for the police to determine a question such as whether there are exceptional circumstances to justify prosecution, therefore meaning that there would not be a prosecution but there would be a caution. It ought to be the prosecutor who takes both decisions.
I shall speak also to Amendment 26, on which Amendment 27 is consequential, merely removing the passage providing for the affirmative resolution. Amendment 26 would remove subsection (7) which provides:
“The Secretary of State may by order amend this section so as to provide for a different period for the purposes of subsection (4)(b)”.
Subsection (4)(b) simply sets out a two-year period, which is the period within which a previous offence must have been committed. I fail to see how later experience will help the Secretary of State or anyone else determine whether two years is the right period. Given the experience of the criminal courts, the Committee knows whether repetition within two years is right. Experience is unlikely to change that because there is no doubt that an arbitrary period has been selected as in more cases than not it will be judged to be about right. In some cases, an offence committed three years ago ought not to be disregarded; in other cases, an offence committed a year ago ought to be disregarded. I simply do not understand why we should need an order-making power to change that two-year period.
Lord Kennedy of Southwark
My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.
These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to my noble friend for his detailed explanation as to why the Government resist Amendment 25, particularly since I hope I made it clear that the amendment is effectively contingent on the “exceptional circumstances” test not being adopted and on the police not being responsible for the decision-making. I fully accept that, if that test stays and if the police are to make the decision, then a senior officer should be in charge.
I also make it clear by repetition that I, along with the noble Lord, Lord Kennedy, fully accept, as I said at the outset of the previous group, the need to be restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt; I accept his point that that is the more important in serious cases. My question to the Government, which was echoed by the noble Lord, Lord Kennedy, is simply whether “exceptional circumstances” is the right test, and how it is to be administered. I appreciate the indication that there will at least be discussions that take this forward. On that basis, I beg leave to withdraw the amendment.
Legal Systems: Rule of Law
Lord Marks of Henley-on-Thames Excerpts(11 years, 4 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, refer to my interests in the register and echo other noble Lords in congratulating the noble and learned Lord, Lord Woolf, on securing this debate and on the eloquent and erudite way in which he opened it. We all know how much the continued high standing of the British legal system owes to his personal contribution.
I will not concentrate on our pre-eminence in the field of commercial law—the noble Lord, Lord Pannick, and others have made that case well. I will add only a mention of arbitration and ADR. The development of a body of arbitration law by which parties are left free to choose their arbitrator, venue and procedure, underpinned by a strong enforcement regime, has been important for our international standing. So, too, has our reputation for ADR and the willingness of our courts and the professions to encourage and facilitate mediation.
The Motion speaks of the rule of law. To me, the cardinal principle is that the law, not the state, is supreme. As Dr Thomas Fuller expressed it in 1733:
“Be you never so high, the law is above you”.
Fuller was famously quoted by Lord Denning in the Gouriet case in 1977, again by Lord Bingham of Cornhill in his seminal book on the rule of law, and just now by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
We in this country are confident of the independence and incorruptibility of our judges, which are guarantees of impartiality—we are fortunate in that—but certainty and consistency are also important for our reputation, and the doctrine of precedent has helped greatly with them. Transparency is also increasingly important, with electronic communications now disseminating information instantly and universally. I suggest that there is room for more televising of cases, particularly judgments and reasons for sentence. Of course, there must be restrictions, particularly on witness evidence, but more recording would enhance public understanding of judges’ decisions at home and internationally, unfiltered by an often populist and partial press.
Several noble Lords have mentioned the European Convention on Human Rights, the great work of, largely, British Conservative jurists, the vision of Winston Churchill, which substantially underpins our system and enhances its credibility. It allows the scrutiny of the exercise of state power by reference to a guarantee of fundamental human rights and freedoms justiciable in our courts under the Human Rights Act.
What do I see as the threats? I shall highlight just four. First, the political threat to the Human Rights Act is serious. Sadly, it comes largely from politicians, who are frequently complicit in falsely portraying it as a creature of the European Union and treating it, perversely, as a charter for the unworthy and a threat to law-abiding citizens. There is a crying need for a wider understanding of the reality—and, as several noble Lords pointed out, for respect for the judgments of the European Court of Human Rights.
Secondly, the contraction of legal aid as a result of austerity has risked access to justice, and so our international reputation for fairness. I hope that, where alternative funding methods cannot be found to fund legal advice and representation, in due course the Lord Chancellor’s powers will be exercised, as funds allow, to bring some of the excluded areas back into scope.
Thirdly, the threat to judicial review, mentioned by others, which we will debate later this month, threatens our reputation for the rule of law. The measures proposed would unfairly and unjustly choke off private funding to support challenges to the Executive, stifle interventions by public-spirited bodies and prevent judges from protecting litigants of limited means who challenge government action.
Finally, we have made far too little progress on judicial diversity. In the four years since the excellent report of the noble Baroness, Lady Neuberger, we at least passed the judicial diversity provisions in the Crime and Courts Act. However, last year, we missed a golden opportunity to appoint our first woman Lord Chief Justice. Since April last year, there have been three appointments to the Supreme Court Bench with not a hint of diversity among them.
The issue is important. Whatever we think of Oscar Pistorius and his trial, the international reputation of South Africa’s legal system has been immeasurably enhanced by our witnessing, day after day, the quiet, careful and considerate handling of his trial by Judge Masipa in a case mentioned by the noble and learned Lord, Lord Judge.
To achieve judicial diversity, we must achieve more diversity in the professions. However, the reduction in legal aid and the uneconomic remuneration rates for criminal work reduce the number of lawyers undertaking publicly funded work. When I asked my noble friend about that on Monday, he said that,
“there is less for lawyers to do and inevitably there will be fewer lawyers to do it”.—[Official Report, 7/7/14; col. 10.]
That may be technically accurate, but, equally inevitably, the reduction is in those doing publicly funded work. The reduction in the standard of lawyer undertaking such work has been mentioned, and is important. Wishing no disrespect to either my noble friend or me, the more that the professions sound like him and me and look like him and me, the less we are likely to present to the world a judiciary that is genuinely representative of modern Britain.
We are rightly proud of our legal system but we cannot stand still, and I fear that we may not be keeping up in important areas.
Legal Aid: Social Welfare Law
Lord Marks of Henley-on-Thames Excerpts(11 years, 5 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I refer the House to my registered interest as a practising barrister. My noble friend’s department has in the past largely dismissed fears for the future availability of publicly-funded barristers, given the cuts in the scope of legal aid and in remuneration rates. Does my noble friend share my concern at the 38% drop in available tenancies in chambers over the year to 2011-12 and the long-term decline in the availability of pupilages, particularly in chambers doing legally-aided work? How can we reverse this trend?
Lord Faulks
My Lords, that is a little way from social welfare law. Of course we need lawyers to represent those in every section of society in all sorts of fields. The fact remains that there is less for lawyers to do and inevitably there will be fewer lawyers to do it. It is important that the profession maintains high standards but I do not think that I can comment on numbers in particular chambers.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(11 years, 5 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, we come to the Bill at a time when crime is falling. In 2013, according to the Crime Survey for England and Wales, there was a 15% fall in crime overall to its lowest level in more than 30 years. The fall in violent crime has been particularly marked. It has fallen for each of the past five years, which is profoundly welcome. What is more, with the rehabilitation revolution and the measures we took last year in the Offender Rehabilitation Act, I believe we have started to tackle the scourge of persistent reoffending that has blighted the lives of so many of our young people. On these Benches we are particularly proud of the contribution in this area made by my noble friend Lord McNally, who I am delighted to see in his place today. I know the whole House welcomes his inspired appointment as chairman of the Youth Justice Board. In the criminal justice field, the Bill should be judged by its contribution to cutting crime in general further, and in particular to helping young offenders avoid reoffending.
The Bill creates new offences, which we welcome. The most significant proposals are those to make ill treatment or wilful neglect by care workers a specific offence and to create another offence for care providers of gross neglect of their duty of care. Those in their charge have a right to expect to be looked after professionally, carefully and compassionately. We have all been appalled by the many recent accounts of lack of care in care homes and hospitals. Mid Staffordshire, which was mentioned by my noble friend, Winterbourne View in Gloucestershire, and the care homes in Essex and Croydon recently exposed by “Panorama” are but other examples of what has too often become regular cruelty by carers, often attributable to systemic failures in the organisations that employ them. My right honourable friend Paul Burstow in the other place has worked hard in advocating such provisions as are now proposed. His expertise on the subject and his commitment to better care are well known. These new offences will help to prevent such ill treatment and neglect, and to deal effectively with these terrible cases where they occur.
A further specific offence of police corruption may add only a little to the existing law, but it will serve to make it clear to police and public alike that police officers are entrusted with special powers, that they hold a position and role in society that makes it incumbent upon them to observe the highest standards and that, if they should fall short of those standards and act corruptly, they can expect to be dealt with severely.
We also welcome the proposal that images of rape are to be classified as pornographic. That is obviously right, and the proposed defence that acts portrayed were in fact consensual strikes a reasonable balance. We will, however, seek to add a new clause outlawing so-called “revenge porn”—that is, putting intimate pictures of former lovers on the internet without their consent. This nasty practice, if not curbed by law, threatens to become more widespread with the advent of high-definition video cameras on phones and cameras built into glasses. Such mean acts of revenge can have profound and devastating effects on their victims’ lives, causing deep distress, often psychological illness and havoc within personal, family and work relationships. In the other place, my honourable friend Julian Huppert suggested making this practice an offence, and my right honourable friend Maria Miller organised an Adjournment debate on the subject.
On the issue of rehabilitation, we will be looking carefully at the proposals for secure colleges. My party has been at the forefront of advocating a greater emphasis on education in custody for adults and young offenders alike. I welcome my noble friend’s commitment to education for people in custody. However, I wonder whether the establishment of secure colleges may not risk large numbers of young offenders being sent to a small number of large institutions, often far away from their homes, instead of to smaller ones with more personalised care and more links with their homes and families. I invite my noble friend to consider, with other Ministers in the department, how we can ensure that sentences served in secure colleges will not jeopardise the greater opportunity for through-the-gate support, which we have been at such pains to provide and encourage for offenders close to their communities before, as well as after, release.
For my part, I am also unclear how meaningful courses are to be organised in secure colleges. Offenders are, after all, sentenced all year round, not just at the beginning of college terms. Their sentences also vary in length. I am concerned that college-style courses may simply not work for many offenders. We look forward to the consultation promised by my noble friend on the secure college rules. My noble friend Lady Linklater will deal further with this topic in due course.
If we have a general criticism of the Bill, it is that too many proposals in it would remove or limit judicial discretion. It seems to be infused with a lack of trust in our judges. I regard some of the proposals as presenting a real danger of injustice in cases which should be dealt with on an individual basis, not by the application of a blanket rule regardless of the particular circumstances.
The proposal in the Bill that I fear most risks injustice is that for a mandatory sentence of six months’ imprisonment for adult offenders, and four months for 16 and 17 year-olds, for a second offence of possessing a knife in a public place. This was proposed as an amendment in the House of Commons from the Conservative Benches by my honourable friend Nick de Bois. Regrettably, Labour MPs lined up alongside the Conservative Back-Bench Members to support it. Liberal Democrats in the Lower House opposed the amendment and we will do so again in your Lordships’ House.
Of course knife crime is extremely serious and we must come down very hard on it. In many cases where an offender repeats an offence of possessing a knife in a public place, he or she will richly deserve a custodial sentence, but that should be for judges to decide on a case-by-case basis. Compulsory custodial sentences are the wrong way to deal with the issue. They stop judges deciding who deserves prison and whether prison will do any good in a particular case. They threaten to affect young black people disproportionately because more of them are subject to stop and search. There is no proof that compulsory prison works. As my honourable friend Julian Huppert said in the Commons:
“The question … is whether we should do the thing that sounds the toughest or the things that actually work”. [Official Report, Commons, 17/6/14; col. 1034.]
We have put all our emphasis in this Parliament on keeping young offenders out of prison where we can and rehabilitating them to lead useful lives in the community. Compulsory sentences are costly and overcrowd our prisons. This is a retrograde step for rehabilitation.
It is true that the Bill would permit a court to refrain from passing the mandatory sentence if,
“the court is of the opinion that there are particular circumstances which … relate to the offence or to the offender, and … would make it unjust to do so in all the circumstances”.
But that only serves to make my point: if a particular circumstances exception is to be widely applied, it makes a nonsense of the provision for mandatory sentences; if only rarely applied, serious injustice is caused in a number of cases. We are not persuaded that there is any justification for this approach beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime.
We are also concerned about the compulsory imposition of a criminal courts charge upon conviction, even for offenders who cannot afford it and for whom employment prospects may be affected by the existence of an outstanding charge because they cannot get credit and they are concerned by the effect on their earnings. I am concerned about the proposal that a court must dismiss the whole of a personal injury claim if it is tainted by fundamental dishonesty. As someone who has conducted many personal injury cases over the years for both claimants and defendants, my experience is that dishonesty in the presentation of personal injury claims is, regrettably, not uncommon. Defendants can often produce convincing evidence, with the aid of video surveillance or otherwise, to demonstrate that the degree of injury allegedly sustained by claimants, and the consequences of such injury, have been wildly exaggerated.
For my part, I have always believed that in appropriate circumstances, judges should have the power to throw out an entire case for extreme dishonesty or to reduce awards of damages to reflect the court’s view of such dishonesty. However, there are many cases which are affected by what might reasonably be described as fundamental dishonesty where the needs of the claimant for the rest of his or her life must come first and in fairness must be met, and where completely depriving the claimant of damages would be very wrong. But instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing.
I turn finally to the proposals for judicial review. Judicial review is the precious right of the citizen to challenge the Executive in the courts when a Government act unlawfully or exceed their powers. The law has been developed, as my noble friend said, over recent decades into what I suggest this House knows is an effective and elegant body of law. One understands that Governments do not relish being challenged in the courts: it is inconvenient. But it is the constitutional duty of this House to protect the right of challenge and to trust our judges to deal with challenges fairly and in accordance with the law.
The measures proposed in the Bill for judicial review risk deterring people with means from supporting legal challenges by making them disclose all their assets and threatening them with widespread orders to pay the Government’s costs personally. The proposals would prevent campaigning organisations and others joining in on cases as interveners to put the public’s case by making interveners pay all parties’ costs of their intervention and by preventing them getting their costs even when they win—and ex hypothesi therefore, even when they have shown that the Government were in the wrong. Campaigning organisations would find it harder to raise money to challenge the Government in the public interest. I welcome the indication from my noble friend today that the Government are open to persuasion on these provisions, but that persuasion needs to go a long way to produce a lot of movement.
Further provisions would allow the courts to protect litigants from costs orders—the so-called costs-capping orders—against them only in cases of general public importance. But what of the innocent member of the public who has been wronged in a particular but unusual case of government irrationality—nothing of general public importance but a serious case of injustice? Why should that citizen not have costs protection if the judge thinks it right that he should? In all these cases, as the noble Lord, Lord Beecham, pointed out, judges have at the moment appropriate powers in relation to costs and judges decide how they should best be exercised.
We will also wish to consider how far the proposed permissive power to make regulations to exempt environmental judicial review cases from the restriction on cost capping complies with our duty under the Aarhus convention to provide access to justice in environmental cases that is
“fair, equitable … and not prohibitively expensive”.
That will be difficult when the Aarhus Convention Compliance Committee has found that under our existing rules, the United Kingdom already fails that test.
There is no evidence that our judges let frivolous challenges or challenges that are of academic interest only because they make no difference, consume public resources unnecessarily. There is no established need for the cost deterrents in Part 4, and a justified fear that they will stifle legitimate cases. We will scrutinise Part 4 very carefully and resist unwarranted intrusions by legislation into areas that are best left to judicial discretion, particularly where what is at stake is the citizen’s right to hold the Executive to account in our courts.
Digital Bill of Rights
Lord Marks of Henley-on-Thames Excerpts(11 years, 5 months ago)
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Baroness O'Neill of Bengarve
My Lords, I was referring to the draft data protection regulation—which is not a directive—not to the right to be forgotten.
Lord Marks of Henley-on-Thames (LD)
My Lords, the noble Lord, Lord Mitchell, rightly raised this privacy issue in the Queen’s Speech debate. Most of us are, I suspect, blissfully unaware that the so-called location services on our mobiles act as an insidious spy in the pocket, constantly recording our every movement wherever we go. Should we not at least start by obliging smartphone and network providers to tell us clearly what personal information they collect and how, and how we, as consumers, can turn it off?
Lord Faulks
The noble Lord is right that this is a source of anxiety and a matter which continues to alarm all sorts of people and organisations. The consumer has a role to insist on this information being provided. That, rather than legislation, is probably the answer for the moment.
Prisons: Overcrowding
Lord Marks of Henley-on-Thames Excerpts(11 years, 5 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, whether or not the present shortage is under control, as the Statement asserts, can the Minister assure those of us on these Benches that the Statement should not be taken as suggesting that the more prison places there are the better? Will he confirm that the Government’s aim remains to achieve a reduction in the prison population by reducing reoffending and keeping offenders out of custody through rehabilitation where possible? Is that policy not achieving some success? Does he also accept that an obvious way to free up necessary space in prisons is to enable the early release of the 3,500 prisoners who have already passed their tariff date for release but are still serving indeterminate sentences for public protection, which were, after all, abolished by the Government to their credit in 2012?
Prisoners: Indeterminate Sentences
Lord Marks of Henley-on-Thames Excerpts(11 years, 8 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, in 2008 the previous Administration recognised the difficulties that the mandatory imposition of IPPs had caused when they made the changes to increase judicial discretion and remove short-tariff sentences for sentences passed after July 2008. Yet there remain in prison many who were sentenced to IPPs before that date and whose short-tariff sentences were completed long ago, as the noble and learned Lord, Lord Lloyd, has just pointed out. He gave us the numbers and they are truly shocking. I pay tribute to the noble and learned Lord for his sustained and impressive campaigning on this issue over a long time.
In 2010, through the then Prisons Minister, my honourable friend Crispin Blunt, the Government publicly recognised that the present position was indefensible because it was clear that many IPP prisoners were being held well beyond their tariff dates for no better reason than that the Prison Service was unable to provide the courses necessary for them to satisfy the Parole Board of their suitability for release. Then, in 2012 this Government, to their credit, recognised the injustice of IPP sentences when they abolished them in the LASPO Act. Also in 2012, as has been pointed out by the noble and learned Lord, Lord Phillips, the European Court of Human Rights recognised the injustice when it decided the case of James, Wells and Lee v the United Kingdom, broadly on the ground that, given the lack of the rehabilitation courses necessary to establish suitability for release, the continued detention of the applicants in that case amounted to the arbitrary deprivation of their liberty, contrary to Article 5.1.
Neither the changes introduced by the Criminal Justice and Immigration Act 2008 nor the abolition of IPP sentences by the LASPO Act had any retrospective effect. The result is that we are now left, as the noble Lord, Lord Wigley, pointed out in his extremely helpful and informative introduction to this debate, with an impossible and indefensible injustice.
The current position is that on the one hand there are in prison many who are serving indeterminate terms well after their tariff sentences have been fully served, often with short-tariff sentences imposed before the two-year restriction was introduced. Many of those prisoners see, and have, no hope of early release because the necessary resources to secure their release are still not being provided in sufficient quantity or at sufficient speed. The system is still overwhelmed by its inability to cope with the stresses placed upon it. On the other hand, many of those sentenced to similar tariff terms more recently—after abolition—who would have received an IPP sentence before abolition have now been, and are being, released after serving their determinate sentences in full, well before those who are still held on IPPs, having been sentenced earlier.
What should the Government do? As the noble and learned Lord, Lord Lloyd, pointed out, the LASPO Act, by Section 128, specifically gives the Secretary of State wide powers to deal with the injustice of existing IPPs. The first power is to provide by order that, following a referral, the Parole Board must direct release if certain conditions are met; the second is the converse—that he may provide that the Parole Board must direct release unless certain conditions are met. The careful use of either power would enable the Secretary of State to put an end to the injustice highlighted in this debate that now disgraces our criminal justice system, while ensuring that prisoners whose release would genuinely present a serious danger to the public are kept in prison until their release is judged safe. Yet, despite the power contained in and legislated for in Section 128, the Government have so far resisted retrospectively altering sentences on the basis that those were sentences passed by judges acting in accordance with the law as it was at the date of sentencing.
Your Lordships’ House is very familiar with the arguments against retrospective legislation but, as my noble friend Lord Dholakia pointed out, they are generally deployed to avoid doing injustice to persons who were unaffected by restrictions before the passage of legislation. I have never heard them deployed in favour of continuing an injustice to those currently affected by unfair and oppressive legislation.
There is a further answer to the argument that bringing forward release dates now would overturn decisions of judges made according to the law in force at the time of passing the sentences. Many of the IPPs imposed were imposed because the judge’s hands were tied, often by judges acting through gritted teeth in compliance with what they regarded as, and what was, a bad law. That is no ground for demanding respect for those sentences now.
Whether the best solution is to treat all existing prisoners on the basis on which they would have been treated had they been sentenced after 2012, or to give them the option to be so treated, as the noble and learned Lord, Lord Lloyd of Berwick, suggests, or whether it would be best simply to introduce a presumption in favour of release unless continuing incarceration can be clearly justified, under the second limb of Section 128, the present injustice cannot in conscience be permitted to continue. If my noble friend’s response to this debate goes no further than saying that the Government will simply try a little harder to speed up the rate of release of prisoners caught by IPPs, that will not, I suggest, be a response that goes anywhere near meeting the need for a genuine solution. Tinkering around the edges of the old system will not be a solution.
It is important to remember that there is a special feature of IPPs. They were sentences imposed not for crimes that had been committed but for fear of crimes that might be committed in the future. It is clear that your Lordships recognise, as we all must, that public protection is an important function of punishment. However, it is also important that those involved with the criminal justice system and the public at large have the confidence that our system of justice is indeed fair and just. Where that system perpetrates and then maintains an obvious injustice, long after it has become recognisable and has in fact been recognised as such, our system cannot and does not deserve to command that confidence. We who support this Government have been proud of the rehabilitation revolution that we have introduced. The continued detention on IPPs of prisoners long beyond their tariff dates is the antithesis of that rehabilitation revolution, and we should end it.
Sentencing Council: Guidelines
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Lord McNally
My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,
“it would be contrary to the interests of justice to do so”.
What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?
Lord McNally
Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.
Probation Services: Privatisation
Lord Marks of Henley-on-Thames Excerpts(12 years, 1 month ago)
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Lord McNally
I have great confidence in the human resources work that is being done to make sure that, where work is transferred across to the private and voluntary sector, existing probation officers get good opportunities for employment. My view is that many of the new entrants into this market will want to grab the experience of existing probation officers. I also hope that we can push forward with the idea of a chartered institute of probation, which again would give probation and probation officers the status that they previously lacked in our system.
Lord Marks of Henley-on-Thames (LD)
Can my noble friend say what steps the Government are taking to ensure that the new owners of the community rehabilitation companies, when they are sold by the Ministry of Justice in the second stage of this process, will represent the diverse range of providers that he described and which the Government seek, rather than just a handful of large commercial organisations?
Lord McNally
This also is work in progress and where we have learnt, including from some past mistakes. We have put aside money to allow would-be entrants, particularly in the voluntary sector, to prepare for bids. My impression is that we are tapping into a large unused resource. Let us never lose sight of what we are bringing forward. The part of the bargain that really excites me is that we are going to be able to give help, support and rehabilitation measures to those who are sentenced to less than 12 months, the very sector which includes some of the most prolific reoffenders. This is a rehabilitation revolution. Although transfer and change are always difficult, we have this on track. However, in answer to the original Question asked by the noble Lord, Lord Ramsbotham—and I know the care with which he takes an interest in this—we will be keeping these matters under constant review and, as always, I am willing to meet him on these matters.