Police Reform and Social Responsibility Bill

Lord Palmer of Childs Hill Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Brooke of Sutton Mandeville]

My Lords, it is a privilege to follow the noble Lord, Lord Imbert, who is a great deal more experienced in these matters than I am. I am also at one remove in following my namesake, who spoke earlier, and who alluded to the presentation which a number of us received on Monday morning. Reference has been made to the experience of the American professor from Stanford who gave a presentation to us about his White House experience. I would add the footnote that he also holds an honorary degree from King’s College London, so he is not without form on this side of the Atlantic.

Brevity is at a premium, so I shall not cover the ground that other speakers have covered. When the Minister spoke on the previous occasion in Committee, she indicated familiarity with the South Dakota experiment. I have a brief addition to make to that. Monday’s presentation emphasised the experience of the three states where the problem was most severe—North Dakota, South Dakota and Montana—and did so graphically with a parallel line high on the page representing North Dakota. A line at the bottom of the page indicated the average experience in the individual states in the US. A diagonal line from the top of the left-hand corner to the bottom right showed the way that South Dakota’s experience had so dramatically improved.

At the end of the presentation, I asked the professor what had been happening in the states that lay between the average figure at the bottom of the page and the experience in the Dakotas and Montana. He said that a series of them which fell in their own performance between the top and bottom lines had already also adopted the South Dakota experience, North Dakota and Montana having already done so. The most notable example of a state that had, as a result of the South Dakota experience, advanced to putting it on the statute book was California.

[Lord Palmer of Childs Hill]

My name is attached to the amendment and I thank the noble Baroness, Lady Finlay, for tabling it. I, too, attended Monday’s seminar. Also present was the Deputy Mayor of London, who was most appreciative of the scheme in that it would add to the ammunition which the authorities have in dealing with drunkenness.

I do not think that any other speaker has yet said that the issue is not about anti-drinking but is about anti-drunkenness. That is what sobriety means in this instance. I am still a councillor in the London Borough of Barnet where there is a lot of drunkenness on the streets. Not all of it is youth drunkenness, but it is drunkenness. We have tried various ways of stopping it. For instance, in the ward of Cricklewood that I represent, there is an anti-street-drinking order. That helps the police to enforce measures against drunkenness. We tried to apply the order in another area of my ward. The local authority has not supported that but the police have done so.

Although that is not specifically to do with the amendment in front of us, I mention it because I believe that those who enforce the law, whether magistrates or the police, must have as many armaments as possible to use with caution to ensure that our streets are safe and pleasant for society to live in. Too often, in the urban environment in which I live many people—not all of them young—are drunk on the streets and throw down their beer cans and bottles. Perhaps with this amendment we can help in some way. The noble Baroness, Lady Finlay, has done us a great service because whether or not the amendment is adopted, the Government have highlighted the fact that they are aware of the problem and have said that tests will be carried out. I thank the noble Baroness for bringing the matter before us.

[Baroness Hayter of Kentish Town]

My Lords, I add a few words in welcoming the amendment and urging the Government to respond positively to it. When I was a magistrate, I would have loved the possibility of this rehabilitation order to monitor ongoing alcohol consumption. As the noble Lord, Lord Palmer, suggested, it is one of a range of possibilities, but to have had this in one’s toolbox, as I gather the phrase is, would have been an enormous advantage.

As has been made clear, the amendment allows the magistrate this power only if alcohol caused or contributed to the offence—in answer to the noble Lord, Lord Imbert, I say that it is the magistrate who will take that decision—and if the offender has a propensity to misuse alcohol and is willing to comply with the requirement. As I argued in Committee, help with alcohol misuse should also be available but, as the noble Baroness, Lady Finlay, has said, we must consider the victims in assessing this possibility.

Most of what we now call domestic abuse, but when I was growing up we used to call wife-battering, is alcohol-fuelled. Violence on the streets, whether against property or against people, would undoubtedly be less without the addition of drunkenness. When are we going to do what the ordinary decent people who walk around our streets want us to do, which is to reduce alcohol-related disruption that affects their lives? That is the question that we have to answer.

As the previous speaker said, this is not anti-alcohol. Indeed, I should declare an interest that last night I was at the parliamentary beer dinner. I was very grateful that we had not reached this amendment by then. I am not against the consumption of alcohol but I am very much against the consumption of excessive amounts of it that then damages the people concerned or, in the light of this amendment, damages the life and well-being of others.

This is an enabling measure and does not require the courts to impose it. It is an opportunity for someone with the propensity to misuse alcohol in a way that damages others to have a period of sobriety—with help available, I hope—thus improving their own family lives as well as the well-being of others. I urge support for this.

--- Later in debate ---

[Baroness Scotland of Asthal]

My Lords, I say for the sake of completeness that I concur with the submissions just made by the noble Lord, Lord Pannick, and particularly endorse his sentiments about the importance that where offences of this nature are identified, they should be prosecuted with vigour and rigour and that those who have committed such heinous offences should most certainly be brought to book.

I was somewhat perplexed by the amendment moved by the noble Lord, Lord Macdonald, and supported by the noble Lord and the noble Baroness for this reason. I agree with the legal analysis of the flaws identified so cogently by the noble Lord, Lord Pannick. I was surprised to find those flaws in an amendment drafted by lawyers of the eminence of the noble Lord, Lord Macdonald and the noble Lord. The errant drafting of the amendment has given us a cogent reason why the matter should be left to the current Attorney-General and Director of Public Prosecutions.

For completeness, I have confidence in the current Director of Public Prosecutions, Keir Starmer QC, to discharge his duty with commendable precision. I have equal confidence in the current Attorney-General and Solicitor-General that they, like their predecessors before me, will discharge their duty with distinction and propriety. I have every confidence that each of them, irrespective of political complexion, can be safely entrusted to discharge the heavy burden of exercising their discretion in those cases and that no further amendments should be made to inhibit them from doing that which must be right in cases of this severity. I am glad that the consensus now appears to be that the gap which was so carefully identified by the Director of Public Prosecutions in his evidence should be closed.

[Lord Palmer of Childs Hill]

My Lords, I rise rather hesitantly, because I feel intimidated in talking in this debate, which seems to be populated by QCs. I am neither a QC nor a lawyer. I rise to give a more layman's viewpoint on behalf of those, like me, who are not adept in the intricacies of the law.

No one on any side of this debate is trying to stop universal jurisdiction for the prosecution of suspected war criminals. That must be stated clearly. However, as the noble Lord, Lord Pannick, said, the amendment is unnecessary and, I would say, even unhelpful. As many noble Lords will know, the usual course at the moment is that the police investigate and pass a file to the Crown Prosecution Service if they believe that such an offence has occurred, if there is a realistic chance of conviction and, as noble Lords have said, if it is in the public interest.

I read Hansard carefully after the previous debate—that is why I was inhibited by the cabal of QCs who were speaking—and I particularly noted the comments of the noble and learned Lord, Lord Goldsmith, whom I know cannot be here today but who has intimated that he is against the amendment left on the Marshalled List. He said in Committee that,

“there are two elements in the code for Crown prosecutors. One is the test as to the adequacy of the evidence and the second is the public interest. Both have to be satisfied before a prosecution takes place”.—[Official Report, 16/6/11; cols. 1008-9.]

For non-lawyers, it is perhaps useful to say so.

Comment has been made about the current Director of Public Prosecutions, who is universally admired. Those who have inquired of Mr Starmer have been given reassurance that, if extra resources are needed to pursue prosecutions, they will be there. If people who are at the moment going to the magistrates’ court to seek a private prosecution, in advance of the alleged criminal coming to this country, were to give that evidence to the Crown Prosecution Service, the CPS would investigate the case before that person then comes to this country. That seems to me pretty good.

I particularly disagree with the amendment—and the noble Lord, Lord Pannick, touched on this—because the DPP does not need to be told, as it says in the amendment, that he “shall give consent”. I hope noble Lords have confidence, as I have, in the Directors of Public Prosecutions, both past and present, so to do. I am slightly dismayed that the noble Lord, Lord Macdonald, was unable to be with us in Committee and, for obvious reasons, cannot be here today. He was also a Director of Public Prosecutions and it is very important to know what he would say.

It is worth mentioning the difference with a private prosecution, via an arrest warrant in a magistrates’ court, where a much lower prima facie case needs to be made. The magistrate is shown the alleged evidence but that court does not have the facilities to investigate that case in more than a superficial manner. The arrest warrant could then be issued if the paperwork looks good—it is only paperwork. The alleged criminal is not informed. No basic defence can be submitted and, if that person comes to this country, under that arrest warrant he could be put in jail for a couple of nights while the DPP decides whether to prosecute. Many people believe that in the many cases that come forward, for one reason or another, they would not have involved a prosecution. The tests used by the magistrate amount to,

“little more than asking whether the papers disclose an arguable case”—

I take that comment from legal advice given in an article that has just recently been written.

This has not been mentioned by other speakers but I would go on to the practicalities. Can it be right that people who have served in their countries—whichever country—as, say, a Defence Minister, Foreign Minister or a member of the armed forces and who are no longer such, and who come to this country, should be liable for arrest at the magistrates’ court rather than be under the consideration of the DPP?

[Lord Wallace of Saltaire]

I hesitate to interrupt the noble Lord but I remind him that we are on Report and this is becoming rather more of a Second Reading speech than a speech on Report, which should be narrowly connected to the amendment under discussion.

[Lord Palmer of Childs Hill]

Thank you. I am happy to bring it back to the amendment. The amendment supposes that it is right to instruct the Director of Public Prosecutions what he or she should do. I believe that DPPs past and present are able so to do without the amendment.

Police Reform and Social Responsibility Bill

Lord Palmer of Childs Hill Excerpts

Wednesday 27th April 2011 Lords Chamber

[Lord Palmer of Childs Hill]

My Lords, I am part of the coalition, which I hope will last. I want to address my remarks both to universal jurisdiction, in Section 154, and to licensing—to the universal and the local, if I can put it that way. No one is trying to stop universal jurisdiction for the prosecution of suspected war criminals. That case was made very clearly by the noble Baroness, Lady Ramsay, by my noble friend Lord Carlile and by the Minister when she spoke at the beginning of the debate, so I thought that I would just stand up and say that I agreed. Luckily for me, the noble Baroness, Lady D'Souza, added some comments that I can elaborate on.

The noble Baroness pointed out that we do not want a two-tier system. I am sorry that she is not in her place, but we already have a two-tier system. If I talk about private prosecutions, the next stage is the Attorney-General. The two-tier is already there, so she is not correct in that assumption.

The usual course at the moment is that when someone is accused, the police investigate and pass the file to the Crown Prosecution Service. If the Crown Prosecution Service feels that there is a realistic chance of conviction and a prosecution is in the public interest, it will charge the accused with the crime. It has powers of arrest while it investigates. That is the case now and that will be the case after and if the Bill is passed.

In answer to the question raised by the noble Baroness, Lady D'Souza, although she is not here to hear the answer, if she had followed the case in the House of Commons she would know that, in answer to one of my Liberal Democrat colleagues, the Minister gave extra reassurance that the Crown Prosecution Service would be given sufficient resources to give exactly what the noble Baroness is complaining about, which is not happening now.

The difference in a private prosecution is that the test is much lower—a prima facie case—and the magistrate is shown only the alleged evidence for the prosecution and nothing at all from the defence. There has never been a private prosecution for universal jurisdiction ending with a conviction. There has never been a trial. Comments were made that there were only 10 cases, of which only two had arrest warrants, but they never went to trial.

So, at present, an arrest warrant is issued and the person concerned is not informed, nor can he or she defend themselves. The person foolish enough to come to our democracy is arrested, and then, currently, the Attorney-General—the second tier, which the noble Baroness, Lady D’Souza, did not notice—will decide whether there is a realistic case to answer.

The change effected by the Bill would be that someone can still be accused before an arrest warrant is issued but the Director of Public Prosecutions would have to agree that a prosecution should go forward. The change, which is very good for a democracy, is that you are taking out the politician—the Attorney-General—and replacing them with the DPP, who is not a politician and who has given lots of assurances in the other place. When we spoke about this outside this Chamber, people asked me what the difference is and why someone should not be arrested by the magistrates’ court. The bottom line is that, under the current system, that person could spend two nights in jail before the Attorney-General said that there was no case and they were released. However, if there was a case—whether it is a Crown Prosecution Service arrest or one that arose out of a private prosecution, supported by the DPP—universal jurisdiction and all the things that follow would be there. The noble Baroness, Lady D’Souza, also said that there should be no politicisation of the process. I assure her that the DPP is not a politician—however, the Attorney-General is, and that aspect of the current system is being changed.

I now turn to the localism of the licensing section. Until the last two or three speakers spoke—the noble Lords, Lord Brooke and Lord Clement-Jones—I thought that this would break new ground and offer a little light relief from police commissioners. Part 2, which covers this issue, is pretty good apart from one point, which I think is wrong—the Minister used the word “vicinity” when she talked about widening the places from where people can make objections. At first glance, that is correct, because anyone within the local authority area can object now, which is an improvement. However, local authority areas have boundaries. In my own area of London, there is a boundary for instance between the borough of Barnet and the borough of Brent, called the Edgware Road. There is a pub I can think of on the Brent side of the road that causes great trouble, which, indeed, is subject to a licensing appeal and hearings. However, the people on the other side of the road, in Barnet, under the current draft of the Bill, would not be able to object, because although they live in the vicinity, they live in a neighbouring licensing authority area. I hope to bring forward a minor amendment to include that in Committee.

The Bill itself, as far as licensing is concerned, is dealing very much with dotting the “i”s and crossing the “t”s. However, the trouble is that we have moved in this country towards the free availability of alcohol under the licensing legislation, which did not exist before. Licensed establishments tended to close at 11.30 pm, perhaps with a half-hour drinking-up time. We were told that in order to stop the inebriated persons—let us call them drunks—coming out of the pubs at 11.30 pm in one horde, we would lessen the load by spreading it from 11.30 pm to 12.30 am, 1 am, 3 am and so on, and then it would be easier. Our neighbours across the channel sit quietly at the tables and drink their wine in a civilised fashion, or so we are told.

The halcyon days of the pubs closing at 11.30 pm have now moved on to the pubs emptying out over a period of hours. During that period, those inebriated people may be kept under control within the licensed establishment, but once they are outside, it is the responsibility of the police. Local communities are being treated very, very badly by the freeing up of licensing laws. One noble Lord talked about licensed retailers selling alcohol. So many retailers—someone mentioned a fish and chip shop and someone mentioned a post office—are extending their licensing hours and applying to sell alcohol that it is free for drinking not only within the pubs but in our streets. I believe that that aspect of the Bill needs to be looked at again.