Victims and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 11th February 2026 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I oppose the Question that Clause 11 stand part of the Bill. This clause seeks to extend the right to prosecute to those with different qualifications from solicitors or barristers.

As my noble friend Lord Gove highlighted at Second Reading, the Crown Prosecution Service faces constraints in whom it can employ, and the criminal Bar is facing a retention crisis. Last year, a national survey by the Criminal Bar Association found that one in three criminal barristers intends to quit. It is obviously crucial that we have enough Crown prosecutors for cases, and we fully appreciate on this side the challenge that the Government face. However, I do not believe that this clause is an appropriate solution. Rather than carefully addressing the causes of those pressures and looking for proper solutions, this clause simply moves the goalposts. It redefines who is qualified to undertake what is highly serious work. That is not good enough.

While it has been argued that allowing CILEX members to prosecute will help to increase diversity, this argument should not be used as a smokescreen for what could potentially dilute standards. I dare say that is not what those truly calling for diversity want either, on their part. Genuine diversity in the legal profession is not achieved by lowering thresholds or by altering qualifications to fill gaps. It is achieved by facilitating pathways and by supporting structures within the profession, so that people from all backgrounds can succeed on an equal footing. To suggest otherwise risks turning diversity into a box-ticking exercise. It does not demonstrate an authentic commitment to broadening access to the profession.

We cannot risk lowering the quality of prosecution. This would not be fair on the defendant, and certainly not on the victim, and it is definitely not in the long- term public interest. Victims and defendants rely on the competence of the prosecutor. A victim must have confidence that their case is being handled by someone who is suitably qualified. Those who prosecute murders today will some years ago have prosecuted in the magistrates’ courts; they start at the lower level and they move up, gaining their experience moving from level to level as proportionate to their skills.

A defendant whose liberty may be at stake is entitled to proper assurance. These are not minor concerns; they go to the heart of our justice system. More widely, any weakening of our standards risks undermining public confidence in the justice system as a whole and weakening the supply, I suggest, of future prosecutors of serious crime. Can the Minister please explain what assessments were undertaken previously of the impact of this proposed change?

If we are to expand the pool of prosecutors, we must be absolutely sure that this shift is backed by sufficient evidence of good quality, and that any necessary safeguards are in place to ensure that standards will not drift or diverge over time. The Committee deserves clear evidence that this reform will enhance, and not diminish, the quality of prosecutions. We have not been shown that evidence. Without it, this clause risks creating more problems than it solves. I urge the Minister please to reflect carefully on these concerns and to ensure that any change to the thresholds is supported by robust, transparent evidence and proper safeguards. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make one or two brief observations about this, if I may. First, I must declare an interest, in that about 10 years ago I was made an honorary vice-president of CILEX. In case it is thought that I am speaking with the interests of CILEX in mind, I wanted to make that absolutely clear.

My first observation is this: the transformation of the way in which the legal profession operates and its financial position has been enormous over the last 20 or so years. Sometimes, I think we forget the huge difference there is in remuneration for those who practise in areas such as commercial and administrative law and those who practise in the criminal sphere. This is having a very serious effect on the ability.

How that problem is solved is a matter for Her Majesty’s Government, not for me, but it seems to me that, in looking at what the state can afford, it is necessary to look at the way in which an organisation such as CILEX has transformed itself, the qualifications that are given and the reality of many cases. As a judge, one sometimes feels that the best experience for being a good prosecutor is having done a lot of prosecutions, not necessarily where they had a first-class degree from a great university or whether she had done extremely well in the solicitor’s or Bar finals; experience is important.

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We must also reflect on the fact that once the power is conferred, it would not be limited to the present Government. It would sit on the statute book, available for future Ministers to exercise in future fiscal or political circumstances, and without further primary legislation. Parliament should be cautious about granting wide executive powers that alter long-established constitutional arrangements, particularly where the case for change has not been made—we await the review —and the potential consequences for access to justice are so grave. For those reasons, we do not believe that Clause 12 should stand part of the Bill.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, the issue of costs in private prosecutions is an extraordinarily serious one. The noble Lord, Lord Sandhurst, has spoken of the position of charities, the RSPCA being one example. One can well understand the position of a charity conducting a prosecution through a small solicitor where costs are modest. On the other hand, one must recall that for good reasons of public interest, there are private prosecutions by large corporations to protect intellectual property. The consequence of the change in the market for solicitors and barristers has produced a problem, because what the CPS pays prosecutors to prosecute is completely out of line with what a large, industrial conglomerate that wants to enforce its intellectual property rights can pay. This is a problem that has to be grappled with.

One of the reasons why the CPS cannot prosecute more than it does is the Government’s constraint; both the last Government and this one are responsible for that. There is not enough money in the system to enable the CPS to prosecute where it should be doing so. More than 10 years ago, the change in the market and the constraint on the finances of the CPS, arising out of the 2008 financial crisis, began to manifest themselves in the contrast between what happened in private prosecutions by large conglomerates, or associations of those interested to protect their economic position, and in the CPS. The courts have tried to do something about it through a number of cases, but it is an extraordinarily difficult area.

For example, in a commercial case—many of these cases go to solicitors—there did not used to be the idea that you would have to get a tender before you prosecuted, but the courts now require it. The courts have made a number of very important changes to try to bring this cost under control, because, although it cannot be shown that if you pay a large sum—several hundred thousand pounds—to defer the costs of a private prosecution it will directly come out of any bit of the overall justice budget, anyone who has had to deal with the Treasury knows that that is the case. The Treasury looks at a pot for justice and, if you take large sums out of it by paying for private prosecutions, the other part of the justice system suffers.

This is a matter that has to be grappled with, and the right people to grapple with it are the Government. It is not a very good position for judges to be in to be making these very difficult decisions because of the gross inequality between what you pay private lawyers, which many may think is far too much but that is not for me to judge, and what you pay the Crown Prosecution Service, which may not be enough—again, that is not for me to judge. The problem of what I might call public penury and private affluence is absolutely illustrated by the problem of paying for private prosecutions. It is for the Government to grapple with, and setting rates is one of the ways to do it. I think it is probably the right way, but all I am saying is we that cannot run away from this problem that has arisen because of changes in the market and the constraints on public expenditure.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord has inevitably given us a very brief tour d’horizon of the problems of the costs and charges of the legal profession getting out of hand. Looking at the Bill over the weekend, I had to turn up the 1985 Act and write into it the changes that would be made by the Bill. It seems that the one to focus on is making the provisions subject to regulations, which boils down to the Lord Chancellor setting rates—at least that is how I read it. It is not much of a stretch to think that those are going to be linked to legal aid rates, and one can see the problem.

The noble Lord, Lord Sandhurst, who explained some of the problems very clearly, mentioned consultation and rather dismissed it as being helpful, but it is important that the Committee should know what is planned by way of consultation. I hope the Minister can help us on that, because so much turns on its outcome.

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I ask the Minister: what has been the outcome of all this sympathy, all these reviews and all this time? Ultimately, I agree with other noble Lords that this has to be the Bill: this has to be the moment, because it is about not only the grave injustices we have already seen, but those coming up the pipe.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support the principle behind Amendment 61. The real question is: how quickly can this be done?

I want to give an illustration of a problem that has arisen in civil courts across the world: the ability of artificial intelligence to hallucinate—to create cases and precedents for lawyers to use that do not exist. All civil courts across the world, including those in this country, have realised that this is an immense problem. It is being dealt with by practice direction—in some cases, very quickly indeed—because it is corrosive to the proper conduct of litigation, and it seems to me that there is no reason why, when this comes back on Report, it cannot be dealt with. It is not a difficult problem, and if it has been around for two years, that is 18 months too long.

The other point I want to address, in a slightly different manner, is Amendment 62. This is a much more difficult problem and has arisen because of the way in which drill music, and similar music, has been used in the prosecution of cases. The admissibility of such evidence is quite complicated.

What is very worrying—as can be seen by the attendance here today of one of the counsels involved in these cases—is that the way in which this evidence has been used in some cases has caused a lot of deep misunderstanding and suspicion about the way our criminal justice system operates for certain minorities. The thought that you will be found guilty because of the music you listen to is deeply troubling.

However, it seems to me that what we need to do first is look at the cases where this has been used. I looked at the case of the Manchester 10 and, coincidentally, in that case, the evidence had been admitted by agreement, and the Court of Appeal upheld the way in which it had been used for certain purposes.

It seems to me that this is a more complicated problem, and it would be helpful if the Minister was able, between now and Report, to put before the House a short letter explaining what the problem is. I think it would be easier to look at the amendment in the light of a better understanding. The last thing I want to do is to bore the Committee by explaining the ways in which evidence can and cannot be used legitimately. It is much better that members of the Committee have the benefit of reading that on a piece of paper.

[Baroness Brinton (LD)]

My Lords, I have two brief points on Amendment 61, and I thank the noble Baroness, Lady Chakrabarti, for tabling it. It is really wrong that computers or systems have ever been deemed to be reliable, let alone infallible. My husband is a research and design engineer who has worked in Cambridge Science Park for well over 40 years. He and his friends have a phrase that they use among themselves and about themselves: “Garbage in, garbage out”. When we started hearing about the Post Office Horizon scandal and Fujitsu, the first thing he said to me was, “Garbage in, garbage out”. The problem we have is that too many people, the courts and the court of public opinion believe that computer systems are infallible.

I also want to touch very briefly on AI because we are seeing cases in the courts now. Facial recognition cases are coming up. Big Brother Watch reported on one last June. I notice that not quite weekly, but quite frequently, an individual is arrested as they go into a store and are accused of taking something very small and then evidence is produced of them on a facial recognition watch list. It then transpires some time later that they are not that individual. One particular firm’s name keeps coming up—I will not go into that —but the reaction of the shop is exactly that: it is infallible. I support the amendment, and I urge the Minister and the Government not to pause on this at all. It is needed, not just for the legacy of Post Office Horizon, but for cases in our courts right now.

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[Baroness Levitt (Lab)]

I do not accept that. My noble friend should think carefully about making accusations such as that.

The point is that we are looking at the evidence that we have received in order to evaluate it to ensure that we make evidence-based and informed changes. The Government are considering this matter carefully. I am not announcing another review or another consultation; I am simply saying that we are looking at the evidence that we have.

I hope that my noble friend Lady Chakrabarti will hear the words that I am using. She knows that I understand the problem and that I am not unsympathetic, but we need to find a way that does not create a lot of unintended consequences.

[Lord Thomas of Cwmgiedd (CB)]

My Lords—

[Baroness Kidron (CB)]

My Lords—

[Baroness Kidron (CB)]

I would never compete with the noble and learned Lord.

[Lord Thomas of Cwmgiedd (CB)]

The Government have had nine months. Normally, if you went to a competent lawyer and said, “This is the evidence. We need a solution”, you would be horrified if you had to wait nine months. Why is there not an answer? Can we have one when this comes back on Report? There is no excuse for delay.

[Baroness Kidron (CB)]

My Lords—