Legal System: Prosecutorial Policy

Lord Morris of Aberavon Excerpts

Thursday 18th January 2018 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government what assessment they have made of the extent to which the legal system does justice to alleged victims in the commencement of prosecutions, the disclosure of evidence to defendants, and the relationship between the Crown Prosecution Service and the police authorities.

[Lord Morris of Aberavon (Lab)]

My Lords, I hope this debate is timely, given the almost daily reports of difficulties in sex-case trials. I have spent over half of my adult life at the criminal Bar, and I am deeply aware of the necessity to respond to the needs of justice as problems arise.

When I became Attorney-General, the CPS was in a mess on a number of issues. I invited a distinguished retired judge, Lord Justice Glidewell, to chair an inquiry in which the noble Lord, Lord Dear, played an important part. I am not suggesting there is a need for such a broad inquiry now, but some particular aspects of prosecution require some form of independent review.

The Attorney-General, by statute, supervises the CPS. The House was told last week by the Minister that the practice of him meeting the director frequently and regularly continues. I was glad of that assurance. In my time, the directors would come to discuss problems in individual cases, and particularly those which might be of interest to the public. In most cases, the decision to prosecute was taken by the directors but, in the cases raised, it was of mutual assistance to discuss problems; I hope that, as a senior criminal law practitioner, I was of assistance in the delivery of justice.

I hope the decision in the Worboys case to prosecute only 23 counts—and, of those, only a single case of rape—was discussed with the Attorney-General. I fully understand the rationale of selecting only the best cases to prosecute. However, the machinery to ensure that the victims—including more than 100 other women, according to the police—knew the reasons for non-prosecution in their cases is crying out to be revisited. I have no comment to make on the sentence involving one allegation of rape.

The trial judge, the late Mr Justice Penry-Davey, whom I knew well, had wide experience of criminal law and more. It seems that the sentence was within the guidelines of the time. Had more cases been brought before the court, the sentence might well have been considerably more; the full gravity of the alleged offending would have been understood and dealt with in a sentence.

The victims are concerned about the decision of the Parole Board to release Worboys. Their particular concerns are, first, about how they found out and, secondly, about the conditions on his release. Only one victim was consulted. The Parole Board is an independent body and operates according to its own rules. The Parole Board chairman blames the Justice Secretary because the victim contact service is tasked to do that. It may be revealed in the course of court proceedings whether the Parole Board Rules were carried out. Is there a precedent for a Minister to apply for judicial review of the board’s decision? As the board is financed by the Government, and probably by the Ministry of Justice, I wonder what the precedents are. I trust that the Government will get better legal advice than they did when they appealed to the Supreme Court on Article 50.

Mr Brandon Lewis MP, now chairman of the Conservative Party, has been criticised by Sir David Latham, a former chairman of the Parole Board, as being irresponsible in his remarks. I tend to agree. If the Minister is advised to proceed on judicial review against the Parole Board, the Parole Board itself will then have to consider its position. I advise the Minister to proceed with caution.

I have nothing against Mr Nick Hardwick, whose board has a most difficult talk. It needs only one of these prisoners to go wrong to bring the whole edifice into question. I understand that only 1% do so. I hope that, in the discussions, the representations made on more than one occasion by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, about prisoners with indeterminate sentences are not forgotten.

Mr Hardwick has previously chaired the Police Complaints Commission and been Chief Inspector of Prisons. It has been noted that some gentlemen—and ladies—move seamlessly from one quango to another. Looking at it broadly and philosophically, and not being personal, might it be time for the Cabinet Office to consider whether a much wider pool of talent should be looked at, rather than playing for safety in public appointments and moving pieces around the chessboard? Mr Hardwick now wants more transparency; I wonder whether this was considered at the time of his appointment. I have looked at the Parole Board Rules and they are easily amendable by regulation.

The second issue is the disclosure of evidence which might help the defence and undermine the prosecution. When I recently questioned in the House whether we had gone backwards since 1997 in the practice of disclosure, the Minister blithely assured the House that we had not. I would be fascinated to read his brief on this point. The reality is that, with the growth of social media and the use of mobile phones, the volume of evidence to be considered has grown immensely and made the task of disclosure much more difficult. Might not the downloading of material from mobile phones during the period of alleged offending always be flagged up and specifically considered? Nevertheless, the need to disclose in the interests of justice is still paramount. Last Friday’s press reported that, after the collapse of Mr Allan’s trial and similar cases, the police in London have been issued with a new communications assurance policy to ensure full compliance. I find the Minister’s assurance to the House now even less persuasive.

The recorder, Mr Bruce Houlder QC, previously head of the court martial and a very experienced prosecutor in his time, believes that something is seriously wrong with the process of disclosure. It is not a new problem. In July 2017, the joint report of Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary warned the CPS about the widespread failure to hand over important evidence, and highlighted six cases of failure and called for action. Given the Attorney-General’s supervisory responsibility, I have two specific questions. First, when did the Attorney-General last discuss with the prosecuting authorities the issue of non-disclosure? Secondly, was the joint report to which I have referred discussed, and what action was taken?

There have been many cases reported recently, I fear, but going back a little to 2015 and the case of R v Salt, the then Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, offered guidance in a case where there were difficult counterbalancing pressures, referring to,

“where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute”.

We are told that the Metropolitan Police is reviewing 30 other cases with the CPS. The role of the police in disclosure is crucial. That is the beginning. We look forward to the publication of this review. The problem seems to be much wider than the detective constable in Allan’s case. We need something more independent, from top to bottom, to ensure, in the words of the noble and learned Lord, Lord Thomas of Cwmgiedd, that there is no further undermining of public confidence in the criminal justice system.