Police (Detention and Bail) Bill

Lord Thomas of Gresford Excerpts

Tuesday 12th July 2011 Lords Chamber

[Baroness Browning]

My Lords, there have certainly been exchanges of correspondence with the Law Society. I am not sure whether that included the Bar Council, but the Law Society is certainly aware and has exchanged correspondence.

The Bill has only two clauses and a single effect: to return the law to where it was commonly understood to have been for the previous 25 years. I cannot emphasise strongly enough that all we are doing here is restoring the status quo ante. The Government are quite clear that the Bill in no way widens police powers. So that there is no doubt, it may assist the House if I say a little more about Clause 1, which contains the substantive provisions.

Subsection (1) of Clause 1 has the effect of making clear that all time limits and time periods in Part 4 of PACE are to be read as including time actually spent in detention and excluding time spent on bail. Those limits and periods include initial time limits under Section 41 of PACE, superintendents’ extensions under Section 42 and warrants of further detention under Sections 43 and 44.

Subsection (2) of Clause 1 amends Section 34(7) of PACE. That section provides that when a person returns to detention from bail, whether that return is previously arranged or is as a result of being arrested for breaching bail, the person is to be treated as having been arrested for the original offence and the remaining detention period will have deducted from it the time previously spent in detention. The amendment in subsection (2) makes clear that those calculations also exclude the time spent on bail.

Subsection (3) of Clause 1, as part of the Government’s wish to return the law to its previous position, gives the Bill retrospective effect. I realise that that may be a matter of concern to some of your Lordships as a matter of principle—I will come on to that. As your Lordships will have seen from the Explanatory Notes that accompany the Bill, the Government have considered very carefully the issue of retrospective effect. We have come to the firm conclusion that, if the Bill is to fulfil its objective of returning the law to the position that was commonly understood before the judgment of the High Court in Hookway, it must be expressed as always having had effect. That is because, as the many lawyers in your Lordships’ House will be aware, the Hookway judgment also had retrospective effect. If the Bill were not to apply to the past as well as the future, there would be very real questions as to the legality of many past detentions, both before and since the Hookway judgment.

[Lord Thomas of Gresford]

My Lords, I wonder whether the noble Minister would help me. She says that we would be going back to detentions in the past, but she referred earlier to restoring the status quo. Well, the status quo of Mr Justice McCombe is right: it was an illegal situation, where people were detained illegally.

[Baroness Browning]

I can understand why my noble friend makes that point, but the purpose of this Bill is to restore the legislation that comes out of PACE to the understanding that has been exercised for the last 25 years as to the conditions that apply to detention and bail. My point about the need for the Bill to be retrospective is that we are seeking not to add new elements to the Bill but to restore what we believe was Parliament’s intention in passing it, and what certainly has been the understanding for the past 25 years of those who have been engaged in the legal processes from all sides, both lawyers and the police. I would therefore say to my noble friend that, if we were not to make this retrospective, there could be many thousands of claims for unlawful detention, and a similarly large number of claims that evidence gathered after 96 hours had elapsed was no longer admissible. That would be a thoroughly unsatisfactory state of affairs, which could tie up the courts and the police service for thousands of hours.

I would also point to the conclusions of Liberty on this issue, in paragraph 8 of a widely circulated briefing that it prepared on the Bill. Liberty commented:

“We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would not in our view … fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties”.

I am also aware that the Constitution Committee of your Lordships’ House has commented that it is,

“concerned that asking Parliament to legislate in these highly unusual circumstances raises difficult issues of constitutional principle as regards both the separation of powers and the rule of law”.

While the Government are always attentive to the observations of the Committee, as I indicated in a letter to the Committee yesterday we do not see that the decision to legislate in advance of the outcome of the appeal to the Supreme Court raises any constitutional issues. The sovereignty of Parliament means that it is entirely open to Parliament to legislate at any time in response to a judgment of the superior courts.

I am also aware that, since the Hookway judgment, there has been some commentary from within the legal community—particularly from those acting on behalf of those suspected of an offence—which has sought to express concerns that the Hookway judgment is some sort of warning to the police that the courts will not put up with the way that they use pre-charge bail. We will take account of the wider issues of the way the police use bail, but in this particular case, nothing in the terms of the written judgment indicates that Mr Justice McCombe had any underlying concerns in relation to the operation of police bail; he seems to have reached his judgment purely on the basis of his interpretation of the statute.

Following a lot of discussion and some correspondence —indeed, I have had discussions with noble Lords in the House—I am aware of the concerns that have been expressed, including by Liberty, Justice, the Law Society and others, about excessive duration of police bail in some cases and about unduly onerous conditions attached to the bail. As my right honourable friend the Minister for Policing and Justice indicated in the other place, we are not able in this Bill to deal with any wider issues about the Police and Criminal Evidence Act. Moreover, it would be wrong to make changes to police bail in haste and without proper examination of the issues and consultation with the police, the Crown Prosecution Service, the legal profession and others. However, we will reflect carefully on the debates on the Bill, both in this House and in the other place. In relation to these concerns, it is our intention in autumn this year to consult on matters relating to bail more generally and to the conditions that apply to them.

I also point out, for those who may be concerned about this point, that anyone who is on pre-charge bail can challenge the conditions of their bail in their local magistrates' court. That is an important safeguard against any perceived abuse by the police of their powers to bail those under investigation.

I hope the House will be reassured that we are most certainly listening to people and intend to consult on those wider issues that have come to the forefront as a result of the legislation before us, but the urgent nature of this fast-track legislation means that there will be limited time today for debate on those wider issues. We will of course consider any observations that noble Lords make in that area in the course of our deliberations today and will come back to those at another time. The issue before us today is to correct the situation and restore to the police the powers required to protect the public properly. The Government believe that the Bill does that and no more. The other place agreed unanimously to the Bill when it considered it last Thursday. I beg to move.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, that is a very telling intervention from my noble friend. Surely that is the case. All I would say to the Minister is that I hope lessons will be learned from this matter.

Changing the law retrospectively is in general undesirable and creates great uncertainty. It threatens natural justice if people end up breaking up a law they did not know existed. In this case, my understanding is that the Government are seeking simply to restore the law to what we in Parliament thought it was, to what it had been intended by Parliament at the time to be and to what the police, the CPS and others have followed in good faith for many years.

I noted the intervention of the noble Lord, Lord Thomas of Gresford. Like the Minister, I also noted the comments of Liberty, which are worth emphasising. Liberty does not believe that the Government are seeking retrospectively to create a criminal offence, sanction or other burden, so it would not fall foul of Article 7 of the European Convention on Human Rights.

[Lord Thomas of Gresford]

Is the noble Lord saying that he can envisage what Parliament meant many years ago, when a High Court judge has determined through the language used what was meant? If anybody disagrees with his interpretation, surely the appeal for which leave has been given should be pursued.

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[Lord Thomas of Gresford]

My Lords, it is a great pleasure to follow the noble Lord, Lord Pannick, and I agree with everything he said. It may be that the answer to his final question is that Royal Assent should not be given to this Bill until we have the judgment of the Supreme Court, and then there could be no necessity for it to be repealed.

When the noble Lord was speaking I was reminded of the story of the acorn falling on the head of Chicken Licken, who informed Henny Penny, Goosey Lucy, Turkey Lurkey and others that the sky was falling in. Finally, they all told Foxy Loxy, who listened to their panic-stricken warnings and then ate the lot of them. Much emergency legislation is introduced like the fabled acorn. The Hookway case merely declared that the relevant legislation did not allow the police to save up unexpired periods of authorised detention and to use them to detain and question suspects pre-charge at any date in the future—and this is the important point—even though no fresh evidence had been obtained.

If this is what Parliament meant in passing the legislation, as Mr Justice McCombe has held in his complex judgment, which required to be in writing before it could be properly addressed, then it seems to me as a matter of policy a highly desirable result. If the police and the CPS advising the police do not consider that there is sufficient evidence to charge a person today, why should they be allowed to detain and question the suspect in six months’ time, he having been on police bail, on exactly the same evidence? It is lazy policing. Of course, if there is fresh evidence as a result of a more vigorous or deeper investigation—a matter of some topical relevance today—that is a different matter. In such a case, if there is fresh evidence, a power of arrest would arise and a person could be detained and questioned in relation to the whole case, including the fresh evidence.

The problem that arises in this case is that a suspect can be detained again at a later date—six months, or even more, later—and questioned when no further investigation has taken place. He is simply being questioned on what was in the past. If Mr Justice McCombe’s interpretation of the statutory provisions of what Parliament meant—which is what his judgment is and not what the noble Lord, Lord Hunt, thinks from reading an article in a magazine—is correct, then Manchester Police should continue with its appeal, for which, as your Lordships have learnt, it has obtained leave through a certificate that it is a matter of public importance.

The noble Lord, Lord Hunt, did not continue entirely with the Constitution Committee’s point, which the noble Lord, Lord Pannick, has also made, that Parliament would then have the benefit of a considered judgment from the Supreme Court to assist its deliberations if the appeal were allowed to go ahead. We would then know what the Supreme Court thinks about Mr Justice McCombe’s interpretation.

This simple Bill ensures that lazy and possibly oppressive policing can continue but it raises a much more important question: has the practice of indefinitely extending police bail become a genuine abuse? There is no statutory limit when a person is given bail pre-charge and invited to come back at a later date. In Committee on the Criminal Justice Bill of 2003, my noble friend Lord Dholakia moved an amendment to insert a provision that police bail should not extend more than 28 days, as had been recommended at that time by the Home Affairs Select Committee. He said that his amendment would limit the pre-charge period and that:

“The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily”.

The then Attorney-General, the noble and learned Lord, Lord Goldsmith, responded that pilots that had been carried out suggested,

“that in most cases a five-week period should be sufficient to enable charges to be brought”.—[Official Report, 14/7/03; col. 683-84.]

He thought extending police bail for about five weeks was appropriate. Consequently, on 29 October 2003, I moved an amendment on Report for a limit of 35 days —five times seven, taking the Attorney-General at his word. He said in response that he did not wish to have a statutory limit but that it would be better for guidance and instructions to be issued by the Director of Public Prosecutions and the Association of Chief Police Officers. Were such guidelines ever issued?

I am indebted to Mr Roger Windsor who has pursued this topic with freedom of information inquiries which reveal that in 2008, in three police areas alone out of 43—West Mercia, Sussex and Surrey—358 individuals spent more than nine months on police bail to which conditions were attached. I have supplied his findings to the Minister. I am also indebted to Mr Csoka QC of Lincoln Chambers in Manchester and Mr Joseph Kotrie-Monson for their views, which I have similarly passed on.

Not only are there no time limits in relation to how long the police can keep a suspect on police bail when no new evidence has emerged but there is no mechanism whereby the degree to which the police are acting with due expedition—or, worse, with bad faith—can be independently scrutinised. One wonders whether the cuts in funding for the police and CPS could be translated into restrictions on the liberty of those who have not been charged with any offence. The conditions that can be imposed on those bailed can include reporting, curfews, travel and residency restrictions. It is my own personal experience and that of others that conditional bail can last for months or even years with no sign of any activity by the police or the CPS. In other words, people can be given bail at the police station and are welcome to walk out of there subject to the restrictions but those can continue indefinitely without any possibility of seeing whether the police are carrying out their functions expeditiously.

When the Police and Criminal Evidence Act was enacted the police could bail only without conditions—there was merely a requirement to surrender on a future date. In 1995, after 10 years of PACE, the police were given the power to impose conditions. The use of those powers has now reached epidemic proportions. It is the experience of defence lawyers that conditional bail is used punitively against suspects who the police believe are criminals but against whom there is no or no sufficient evidence. The police can extrajudicially, by the grant of bail subject to conditions, curtail their liberty for an indefinite period. Additionally, those arrested for public order offences at political demonstrations are often bailed for inordinate periods with a condition; for example, not to enter Westminster or not to attend further demonstrations. Often no charges are ever brought. They have been subjected to a form of control order which is effectively outside the rule of law. This happened in 2009 with protesters planning a protest at the E.ON power station in Nottingham and the arrest, detention and bailing of protesters during the occupation of Fortnum & Mason on 26 March this year.

The simple solution is to bring in a legal framework which imposes time limits on pre-charge bail and gives a right to appeal. Defendants who are remanded in custody have the protection of custody time limits. Extensions of custody time limits—normally six months —can be granted only if there is a good and sufficient cause and the prosecution has acted with due expedition. It is a frequent case in court that the prosecution goes along and explains how its inquiries are going and why there has been a delay. There ought to be similar protection for those on police bail. Extensions of time could be granted by a district judge but only if the police show good and sufficient cause—that there are reasonable lines of inquiry which could not, with due expedition, have been completed within the initial time limits.

Such a system would protect not only the rights of a suspect but also the victim: a rape victim, for example, has the anxiety of waiting months to see whether a charge is to be brought. Time limits will prevent inefficiency, poor staffing or indecision from creating a culture of delay.

Unhappily, the acorn at the moment is too small and this Bill is too light to carry the burden of extensive amendments to deal with these problems. I am grateful to Mr Justice McCombe for leading Parliament to investigate this area and I am extremely grateful to the Minister for indicating that an urgent review will be carried out in the autumn into what is potentially a very considerable abuse of the system, which certainly Parliament never meant when it passed the legislation in 1985 or when it was considered at any later date.

[Lord Hunt of Kings Heath]

My Lords, that was not the point I was making. The noble Lord asked me where I referred to the supposition in relation to putting it back to where Parliament thought it would be. I quoted from an article, which in turn quoted quite clearly from Hansard of the debates at the time. But that was not the point I was arguing.

[Lord Thomas of Gresford]

I am grateful to the noble Lord for his explanation. I have made all the points that I wished to make. I look forward to the review. I look forward to participating in a parliamentary debate on that review and we can see whether this abuse, which I believe does exist, can be cured.

--- Later in debate ---

[Baroness Browning]

If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.

On 5 April 2011, the district judge refused the Greater Manchester Police’s application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge’s ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made—a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point—26 May.

As I am reading this, I realise that it is all right for me—I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.

On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration—not only because of the QC’s opinion but because of the wording of the judge in his oral judgment—that this matter was not going to be as far reaching as it has subsequently proved.

It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS’s headquarters. The full magnitude of potential difficulties then became quite apparent. The following day—we are talking about one day following the other—ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.

The following Monday, 27 June, Clare Montgomery QC’s advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented its case for urgent legislation to Home Office Ministers. On the same day, the Minister for Policing and Criminal Justice made an Oral Statement to the House of Commons on the need for urgent legislation. To pray in aid the words of ACPO lead Jim Barker-McCardle:

“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term”.

I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.

[Lord Thomas of Gresford]

My Lords, perhaps I may assist my noble friend a little further. Neither the district judge nor Mr Hookway was represented at the hearing before Mr Justice McCombe, and there was a single counsel appearing for the Manchester police. It was clearly very low-key at that point; the respondents to this application were not even there.

[Baroness Browning]

My Lords, I am grateful to my noble friend for adding that information.

I hope that I have been able to allay some fears that the timeframe needed was a result of the Home Office—or, for that matter, anyone else—being dilatory. Had the judge’s and the initial QC’s advice not both indicated that this was not likely to be as far reaching as it subsequently turned out to be, I might accept some of the criticisms. However, the Government have acted as quickly as possible in the circumstances.

I understand that the GMP did ask the Supreme Court for an early hearing. I gather that it was initially given a date in the autumn and, when pressed, the date was brought forward to July. I will soon come on to some of the points that were made by the noble Lord, Lord Pannick.

I hope that I have satisfied noble Lords about the timeframe and the Government’s intentions with the wider issues that have been spoken to by noble Lords, including particularly my noble friend Lord Thomas of Gresford and the noble Lord, Lord Clinton-Davis, about the need for consultation and a fresh look at bail and its conditions. I can assure the noble Lord, Lord Clinton-Davis, that the Law Society and the Bar Council will, of course, be invited to take part in the consultation. We will make sure that all partners in this matter are fully engaged in the consultation, because I know that they will have a lot to contribute to this.

I am also very grateful to my noble friend Lady Hamwee, who, as ever, brings a very measured response to these matters. We have also heard from the noble Lords, Lord Condon and Lord Dear, who have had many years of experience in policing in this country. I was rather struck by the fact that the noble Lord, Lord Condon, in pointing out the operational difficulties that the police currently have to manage, said that no other court decision has had the scale and magnitude regarding operational policing as the one that is before the House tonight. I say to the noble Lord, Lord Dear, that, again, one of the things that always strikes me, having come from another place to your Lordships’ House in the not too distant past, is that the first-hand experience that noble Lords contribute to these debates is what not only makes them of a very high quality but helps to inform the way in which we legislate and proceed in these very difficult matters.

When the Association of Chief Police Officers presented us with clear evidence of the adverse impact of this judgment on the ability of the police to investigate offences and protect the public by enforcing bail conditions, we had a duty to act as a Government, and I believe we have quickly done so. From the debate, it was evident that your Lordships accept the need for fast-tracking this legislation, for the most part. If anything, this is one of those occasions when, notwithstanding the issues that noble Lords have raised, the House has acted and come together to make some progress and help resolve a very urgent problem.

The House would rightly have been sceptical had we sought to introduce a fast-track Bill on the back of an oral judgment, given that the judge in the Hookway case said at the time that the consequences would not be,

“as severe as might be feared in impeding police investigations in the vast majority of cases”.

We now know that assessment of the operational ramifications of the judgment to be misconceived but, as I explained, that became apparent only after the written judgment on 17 June.

Professor Michael Zander QC has been cited around the House. I understand that Michael Zander is someone whom noble Lords feel confident in citing because of his reputation in the field. I do not want to let go the opportunity to cite him myself. He said:

“The Home Office has been criticized for being a bit slow off the mark. But measured from the date when it received the transcript of the judgment, it dealt with the problem in a little over three weeks—which, as these things go, is not bad going”.

We have all prayed in aid Professor Zander; he sounds a pretty good sort of chap to me. I have not met him, but his judgment is clearly respected on all sides of the House.

Police Reform and Social Responsibility Bill

Lord Thomas of Gresford Excerpts

Thursday 16th June 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I rise to speak to the amendment tabled in my name and that of my noble friend Lady Tonge. Like the noble Baroness, Lady D’Souza, I will abbreviate my remarks in view of the opening comments by the noble Lord, Lord Campbell-Savours, with which I wholly concur. Indeed, my amendment differs from his and from that in the name of the noble Baroness, Lady D’Souza, and my noble friends Lord Lester and Lady Tonge, in only one particular respect. The amendment moved by the noble Lord, Lord Campbell-Savours, allows—indeed, requires—a justice of the peace to get the advice of the DPP on the advisability of granting a warrant. The amendment tabled in the name of the noble Baroness, Lady D’Souza, and others would allow the court to receive advice from the DPP. I am adamant that any advice given with regard to these matters, which are intrinsically important, must be in open court. It is for the DPP to take the opportunity which is available under both those amendments, I think, to go to the court and argue the matter in open court, not by way of written private advice.

I think that the status quo is perfectly satisfactory and that meddling with citizens’ rights in the age of the overmighty state is extremely dangerous. Like the noble Lord, Lord Campbell-Savours, I drafted my amendment and put it down before I saw the evidence submitted by Justice, Liberty and the Joint Committee on Human Rights. It is worth putting on the record not only that the Joint Committee argued long, fully and with conviction that the arrangements in this Bill are wrong in principle and in practice and ended up, I am happy to say, taking exactly the line that the amendment tabled in my name takes. The same was true of Liberty. Justice simply wanted Clause 154 removed alltogether, leaving things entirely with the status quo.

At least my amendment will give further strength to the procedure if that is needed. I do not think that it is but I put it forward in a conciliatory way. As has been said, it is worth briefly repeating that we already have judicial oversight under existing law. It is already the practice to deal with these extremely difficult applications for warrant only before a district judge—who we used to call a stipendiary—who is not only a professional judge but also, because they are heard before the City of Westminster Bench, is a specialist in matters of this type. The district judges concerned deal, for example, with terrorism extradition cases. The judge, whoever he or she is, must be satisfied that there are reasonable grounds that the offence has been committed and that there is admissible evidence which, if uncontradicted, could establish the elements of the offence.

There is also of course state immunity. State immunity was exercised in the case of General Mofaz in February 2004 when he was saved from the issue of a warrant on the grounds of state immunity. Let us not forget that the Attorney-General has the right to intervene and issue a nolle prosequi, which puts an end to it. The Attorney-General will do that on grounds of public interest. As I have said, this is a misguided provision. Perhaps I may quickly read the conclusion of the Joint Committee on Human Rights, which is extremely clear in explaining the difference between the Bill and my amendment. It states that “The difference between notification” of the DPP “and consent” of the DPP,

“would be significant. On notification, even if the DPP applied the general prosecutorial test in determining whether to intervene in an application, the ultimate decision on whether to issue an arrest warrant would lie with the Magistrate on the test applied at the present. By contrast, if consent is a precursor, then the determinative decision will in practice be that of the DPP”.

Finally, it is relevant to say that, in the Gourier case, Lord Wilberforce said that the right of the private citizen to apply for a warrant and to take a prosecution is,

“a valuable corrective against the inertia or partiality on the part of authority”.

On another occasion, Lord Diplock made comparable remarks. For those reasons, it would be a retrograde step to approve the Bill as it stands.

[Lord Thomas of Gresford]

I shall speak to the amendment in the names of my noble friend Lord Macdonald of River Glaven, who cannot be here this evening, and myself. From the position of practitioners with hands-on experience of the criminal courts throughout our legal careers, we believe that the existing system works perfectly adequately. I concur with the views that have already been expressed in that way. Few applications are made and, of those that are, most are rejected by the magistrate who is the highly experienced person. Why then is there a need to move away from the current position? We are told that it is because there are people who feel that if they come to this country they may be subject to a private prosecution and to arrest.

Those who feel that way in foreign countries simply do not understand the practice and procedure of our courts. It is strange to amend our law not because of a real problem but because there are people abroad who believe that a problem exists when it does not. We are moving from the position that if the Government want to introduce the question of the consent of the Director of Public Prosecutions, it should be made equally clear at the same time that the tests to be applied are those which would be applied in an ordinary criminal case in this country. No special tests will be needed for those from abroad and who face allegations of offences of universal jurisdiction.

We feel that the tests that are to be applied are those of the existing discretions of the Director of Public Prosecutions. I have been approached today by my noble friend Lord Carlile in his usual genial and understated way to point out that the tests applied by the DPP are in fact subject to change. The guidance has changed in some ways. My noble friend tells me that we are now on the seventh version of guidance issued to public prosecutors. If that is the case, it is perfectly simple to redraft on Report the amendment that we have put forward so that we put in a broader way that the same tests which apply to citizens of this country will also apply in the case of people who come to this country.

But there is a difference with private prosecutions. Let me say that no practising criminal lawyer has any time for private prosecutions. They generally fail, and generally they cause great harm and trouble to people. We feel that prosecution should be in the hands of people charged with those duties; namely, the Director of Public Prosecutions and the Crown Prosecution Service, which acts under the director. The distinction is that the arrest warrant in a private prosecution leads to trial. When the police arrest someone, there is an arrest, and then there is a consideration of evidence that is obtained between arrest and charge. The charge is brought on the advice of the CPS only where there is sufficient evidence for the case to go forward. At that intermediate stage, the charge does not exist in private prosecutions, and therefore the issuing of an arrest warrant leads, as I have said, straight to trial. We believe that safeguards are needed.

We start from the basis that there is no need to amend the existing position.

[Lord Goldsmith]

I wonder if the noble Lord could help me on one point. As an experienced criminal practitioner, as he rightly describes himself, he is well aware 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. I note that in the amendment tabled in his name and that of the noble Lord, Lord Macdonald of River Glaven, there are two parts to this test. One part of the test, in proposed new subsection (4AA)(a), applies when there is enough evidence to be satisfied that there is a realistic prospect, so in that case there needs to be a consideration of the public interest. In the second test, in proposed new paragraph (b), which is where there is not enough evidence, there is no reference to the public interest at all. That is probably the most likely situation—that there is not enough evidence at that stage to know if there is a realistic prospect—so why does the public interest not come into his amendment at all, even though he has been addressing it on the basis that it is to replicate the current system, which requires the public interest to be considered?

[Lord Thomas of Gresford]

The noble and learned Lord makes a very valid point and I accept that of course it is intended that the public interest test should apply in the second of the two instances as well, although it is not stated in the amendment. As the noble Lord said, we are seeking a solution that will ameliorate the decision of the Government to make it an essential prerequisite for the commencement of a private prosecution that the director consents. We simply seek to make it absolutely clear that the director will not apply a different test to people who come to this country. I hope that that answers the noble and learned Lord.

[Lord Goldsmith]

Does the noble Lord agree that in those circumstances it would be wrong for the House to accept the amendment as it is put forward?

[Lord Thomas of Gresford]

I do not propose to ask the House to agree to this amendment tonight. This is the Committee stage. We shall consider the issue further. As I have already said, the criticisms so gently advanced to me by my noble friend have led me to believe that we might consider how to rephrase it in a way that would be more acceptable to the House.

[Lord Carlile of Berriew]

My Lords, we are proceeding in the usual orderly way of your Lordships’ House and there remain two amendments that have not yet been spoken to. The first of those is the new clause proposed in Amendment 246, which is in my name and those of other noble Lords, who have been very helpful in our approach to it. Then there is an amendment to that new clause in the name of my noble friend Lady Tonge. I say at the outset that I accept entirely her amendment to my proposed new clause. It seems eminently sensible. The proposed new clause is about giving an account to Parliament of the progress in war crimes cases. I hope the House will indulge me for a few minutes in speaking to this. I shall then say a few words about the matters that have been discussed hitherto. However, unlike my noble friend Lord Thomas of Gresford, I shall not give further details of what was designated by him to be a private conversation that took place earlier in the Bishops’ Bar.

There is a specialist war crimes team within the UK Border Agency, which is a very good thing. However, unlike many European and other countries, there is no specialist war crimes unit in either the police or the prosecution services. Other noble Lords and I were involved in all-party and non-party negotiations with the previous Government to expand the universal jurisdiction. Those negotiations were successful. However, they were successful subject to the insistence of the previous Government that what is in Clause 154 should be inserted into the law. All those involved in those negotiations accepted that at the time as being a realistic argument.

As I have said, there is no specialist war crimes unit in either the police or the prosecution service in any part of the United Kingdom. Instead, in England and Wales responsibility for war crimes is shared by SO15—Counter Terrorism Command in the Metropolitan Police—and the equivalent section, headed by Sue Hemming OBE, in the Crown Prosecution Service. The police team responsible for war crimes is also tasked with counterterrorism policing relating to dissident republican groups from Ireland. It therefore has an enormous amount of work to do and deals with a fast-moving scene, irrespective of war crimes.

What does the proposed new clause seek to do? It requires the Government to report annually on all legal action taken against suspected war criminals in the United Kingdom, and on the assistance given to other states and international criminal tribunals. I should argue to your Lordships that it is entirely reasonable and proper that the public and Parliament should be able to take stock of progress in war crimes on a regular basis. Taking stock in that way—having accountability of that kind—will ensure that the Government bestow on the relevant police section the resources that are needed to prosecute war crimes. There have been no prosecutions for war crimes since the prosecution in 2005 of an Afghan warlord who was found living in south London. However, a Peruvian was arrested in Tiverton in Devon in March 2011. He is accused of torture and crimes against humanity for his alleged role in more than 100 killings as a member of a death squad, and is currently on police bail. We hope to see some progress in that case within, of course, the usual legal proceedings.

It is remarkable, given the number of war criminals who are believed to be living in the United Kingdom, that there have been no other prosecutions since 2005. It suggests that insufficient resources are being given to the task. After all, one should bear in mind that, since 2005, the UK Border Agency has taken immigration action against 360 suspected war criminals, while the Metropolitan Police is currently pursuing 29 viable lines of inquiry. The 360 suspects come from a number of countries, including Iraq, Afghanistan and the former Yugoslavia. The UK has also received extradition requests for four subjects from Rwanda who won their extradition proceedings and remain in the United Kingdom.

In addition to the 360, I was visited this afternoon by a representative of an organisation in Bangladesh, which is not included in the list that I enumerated as 360 cases. It is believed that there are several Bangladeshis who have been able to take refuge in this country who committed vast atrocities during the 1971 war in that country. They, too, should be the subject of investigation.

In sum, the purpose of the proposed new clause is to ensure that the necessary progress is maintained in dealing with war crimes and crimes against humanity. I hope that my noble friend the Minister will give some encouragement to myself and others who they put their names to the amendment in the hope that we will see more action promised and in due course taken on this front.

I now turn to the amendments proposed to Clause 154. Despite the eloquence of my noble friend Lord Thomas of Gresford, I am disappointed that my noble friend Lord Macdonald of River Glaven was not here to speak to his amendment this afternoon. I know that he has a busy diary and I am sure that he is doing something very important. But I am glad that we have the wisdom of the noble and learned Lord, Lord Goldsmith, and the noble and learned Baroness, Lady Scotland, who will inform the House of their experience.

The importance of my noble friend Lord Macdonald of River Glaven and his potential contribution is that he is the immediate past Director of Public Prosecutions. I am working on the assumption that he has not consulted his successor, because what is proposed in his amendment, spoken to by my noble friend Lord Thomas, is inconsistent with what has been said very cogently to parliamentary committees by the current Director of Public Prosecutions, Keir Starmer QC.

I would say this to my noble friend if he were here, but were he still the Director of Public Prosecutions I do not believe that he would be prepared to support an amendment of this kind. It is quite simple in my view—I seem to be the only one from the Liberal Democrat Benches who is supporting our Government on this matter this evening—but the simplicity needs to be stated. The Director of Public Prosecutions and his senior staff make charging decisions every single day of the week. That is what they do a lot of the time and it is done at the most senior level. The suggestion that there would be a delay is a canard.

I do not think that I have to declare an interest—indeed, it would be sexist to do so—when I say that my wife works in a senior position for the Crown Prosecution Service, but living with a shared telephone I am well aware of the urgent decisions that are considered in great depth and taken at all kinds of unsocial hours and on all matters of urgency. The suggestion that there would be a delay is simply quite wrong. Furthermore, the Director of Public Prosecutions and his senior staff have enormous experience in making charging decisions. They make all the important charging decisions that take place in this country—or almost all; they should make all, if they are referred to them by their junior staff. In so doing, they apply the Crown Prosecution Service code.

These amendments, particularly that spoken to by my noble friend Lord Thomas of Gresford, attempt to fix in statutory stone something that is much more evolutionary—and needs to be. The Crown Prosecution Service code has gone through many changes. It is reviewed and changed regularly. Since Keir Starmer QC became DPP, it has been changed again and there may be good reasons for changing it in future. Furthermore I hope, and indeed apprehend, that the Director of Public Prosecutions would want to consult widely on the universal jurisdiction and might well wish to issue a code of practice. That might involve some changes to the current code. After all, the Crown Prosecution Service has a special code for dealing with rape cases which is non-statutory. It would be extremely foolish to make it statutory because it would be prevented from change. The same applies to the universal jurisdiction.

I say to my noble friend Lord Thomas of Gresford, in the kindest possible way, that the noble and learned Lord, Lord Goldsmith, with a single kick scored a hat trick when he demonstrated that the amendment put forward by my noble friend, and indeed by my noble friend the former Director of Public Prosecutions, is fundamentally flawed in its text. It shows exactly the danger of attempting to put into tablets of stone this sort of provision, even when it has been drafted by lawyers as distinguished as they.

I say to noble Lords who have tabled amendments to Clause 154 that we have a responsible Crown Prosecution Service, that we have a responsible and able Director of Public Prosecutions, and that it has been decided that this should be done not by the Attorney-General but by the Director of Public Prosecutions, who is a completely apolitical figure. It seems that the Government have got this exactly right. I hope that the Minister will not budge in his determination that Clause 154 should be unamended.

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[Lord Pannick]

I am grateful to the noble Lord. It is of course the experience of all those who have held the sensitive and difficult office of Director of Public Prosecutions and Attorney-General—we are fortunate to have two former Attorney-Generals here—that they have to address these sensitive and difficult questions. There is nothing unusual about this area that singles it out from the problems that are faced, if not on a daily basis then I am sure on a weekly or monthly basis, by those who hold that office. I am sure that they will be able to assist the House regarding this matter.

My point is that the noble Lord’s amendment seeks to give an advisory role to the DPP in relation to a matter that the magistrate simply has no role under existing law to determine. I suggest with respect that that is not a sensible way to proceed, nor would it be sensible to confer on the magistrate a new role, which the magistrate has never had, of having to consider the criteria in the code for Crown prosecutors of whether there is a realistic prospect of conviction or whether the public interest justifies a decision being taken.

The other amendment, Amendment 245AA, would include in the legislation criteria that told the DPP how to exercise his discretion. It would be quite unprecedented for Parliament to tell the DPP what criteria to adopt in exercising his functions, nor do the courts do so. Indeed, it was highly controversial that the Appellate Committee of this House decided in July 2009 to require the DPP even to publish guidelines on whether he would prosecute for assisting a suicide. I declare an interest as counsel for Mrs Purdy in that case. Parliament and the courts have, for good reason, preferred to leave the DPP to develop his own criteria in the code for Crown prosecutors. Amendment 246 raises very different issues—

[Lord Thomas of Gresford]

Does the noble Lord agree that it would surely be right that the DPP should apply the same standards when he is considering one of these cases that come from abroad as he would for a person within the domestic jurisdiction?

[Lord Pannick]

I certainly agree that the DPP should apply the same standards in the sense that he asks whether there is a realistic prospect of conviction and whether the public interest justifies a prosecution. The application of those principles, though, will inevitably depend on all the facts and circumstances of the individual case. It would be unprecedented for Parliament to tell the DPP in detail how to apply his discretion, and there is nothing in what the DPP said to the Public Bill Committee that should cause concern to noble Lords about the manner in which he proposes to exercise this new power if he is given it.

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[Lord Goldsmith]

I am grateful to the noble Baroness. I will make my second point, about what the existing system is. With respect, there is a misunderstanding among some of the Committee as to what the existing system is. In a moment, I will take the opportunity to say something about that on the basis of my experience, particularly from when I was Her Majesty’s Attorney-General.

First, in fundamental agreement with my noble friend Lord Campbell-Savours, the principle of universal jurisdiction is extremely important. I strongly support that principle. I was a Back-Bencher on the Labour Benches led by the noble and learned Lord, Lord Archer of Sandwell, who pushed the Government into passing an effective form of the International Criminal Court Act 2001, which meant that we could prosecute people who were not permanently established here. I was the Attorney-General who consented to the prosecution of Zardad the Afghan warlord; I actually led for the prosecution in that case. As the noble Baroness, Lady D’Souza, said, he was convicted, by a British jury, of hostage taking and torture. He was sentenced to 20 years, which he is still serving.

Just so that noble Lords do not think that my favouring of universal jurisdiction is limited to particular countries, I mention Israel. I publically indicated that I was going to call for the extradition of an Israeli solider when I was concerned that the Israeli authorities were not properly investigating and dealing with an allegation that a British citizen, James Miller, had been killed in Gaza by Israeli fire. I did not do that because I was being pushed by some group. I went and talked to the Israeli investigators, looked at their files, cross-examined them, and called for the Metropolitan Police to carry out its own investigations into evidence which the Israelis said demonstrated that it was not Israeli gunfire, but which demonstrated that it almost certainly was.

In the end the Israelis did not go quite as far as I would have liked, but they did more than they had done as they were threatened with a prosecution. Indeed, they thankfully paid significant compensation to the family of this poor young man. Therefore, I am very much in favour of universal jurisdiction. It is important that we have a robust and effective system. However—this is the second point—there is an anomaly in the existing system, which the noble Lord, Lord Pannick, has rightly identified; namely, that the prosecution cannot take place without the consent of the Attorney-General. This is the debate that the noble Lord, Lord Phillips of Sudbury, and the noble Lord, Lord Pannick, had.

I know that memories fade and that it is a number of years since I did this job, but my recollection is that every single one of the universal jurisdiction offences requires the consent of the Attorney-General to a prosecution. Of course, the Attorney-General can always issue a nolle prosequi, but that is different. In these cases, Parliament has taken the view that a prosecution of this sort has such a public element to it that it should not proceed without the consent of the Attorney-General. As the noble Lord, Lord Pannick, pointed out, the consequence of that is that we have this anomaly. A private group or a private individual, no doubt for good reasons but sometimes perhaps not—I will come back to that—can have an individual arrested even though, when the matter goes to the Attorney-General, the prosecution will not take place.

I first came across the practical problem to which this matter gives rise in the case of Major General Almog, which has been referred to. The first that I knew of an application to arrest Major General Almog was when we received a call from the relevant court to ask me whether I wanted to say anything about it. I could not say anything about it as I had no role at that stage; my role would come later. I could not do anything. I make this point also because one of the briefings that I have seen on this issue suggests that there is no evidence that in that case there was no prior notice given to the Attorney-General of the intended application. I know that there was not in that case because it took place on my watch. From that moment I have considered how you deal with the anomaly that you can have somebody arrested but ultimately there will be no prosecution. That gives rise to a number of problems. First, it gives rise obviously to the problem that someone may be detained, deprived of their liberty and certainly restricted in their movements for a period before the papers reach the Attorney-General and a decision can be made. That is not good for the individual. Secondly, it is not good for the people who have, as it were, promoted the prosecution in the first place. They will be disappointed that, having got somebody arrested, the matter does not proceed.

There is a question of the public funds involved—perhaps it is for your Lordships to decide how important this is—but there is also the consideration that such action will in certain circumstances exacerbate relations with what may be a friendly state if, for good reason—I will come back to what that may be—an Attorney-General says no to a prosecution but somebody has been locked up for a period of time, or at least prevented from going about their business. That will do nothing for good relations and there may be circumstances—the noble Lord, Lord Pannick, referred to such a circumstance, hypothetically, at least—where that could be very damaging to a wider interest.

For a long time I believed that it was necessary to deal with the anomaly. One comes back to the difference between noble Lords’ amendments and the Government’s amendment. Fundamentally, the difference comes down to this: other noble Lords’ amendments say that you should notify the DPP and he should have an advisory role. The Government say that this process cannot happen without his consent. What is the difference between those stances? It is not the difference of timing because if you are going to notify the DPP and ask him to give an advisory view, you need to give the man or woman time to consider it. I agree with what the noble Lord, Lord Pannick, said about the ability of the CPS to move swiftly. I have also heard it said that one of the problems is that there may not be enough time. In the cases that I have seen, the groups that have wanted a prosecution have known for some time that they would like to see that particular individual prosecuted. They may not have known that he or she was travelling on a particular day but they have been assembling their evidence. I see no reason at all—I understand that the DPP has offered this—why there cannot be a system under which they present their material to the DPP so that he and his staff have a reasonable opportunity to consider it and can form a view as to whether or not they will give their consent.

I see real dangers in the present system. It is an anomaly. It leads to dangers to the individual and risk to the people who promote this. It risks relations. The noble Lord, Lord Pannick, said that he knows of cases—indeed, he has advised on cases—of people who are frightened to come to this country. I have heard this as well. The Government will know better, and if that is the case, it is a bad thing. It is a bad thing if in fact they are being deterred from coming where ultimately there have been no prosecutions.

[Lord Thomas of Gresford]

Does the noble and learned Lord agree that it would be quite wrong for the DPP to give in advance immunity to someone coming to this country?

[Lord Goldsmith]

I am really not sure that I agree with the noble Lord. It is not an immunity, but if the question arose and the DPP had seen the material that was going to be produced, had examined it and, having regard to the evidential test and the public interest test, he was of the view that he would not consent to a prosecution, I do not see why he should not say that. That would not be done in a broadcast, but if there were a legitimate reason to know the answer, so that someone can, for example, come to attend an important meeting with Her Majesty's Government, why not? In that respect, what the noble Lord, Lord Carlile of Berriew, said about the DPP having an opportunity to consult a policy statement about this was very wise. That is exactly what I would expect this particular DPP to do; and he would look to what all the interests were. That would, no doubt, be one of the questions that he would consider—to what extent is it right? He would want to make sure that he is not bounced into making wrong decisions and that he has an adequate opportunity to decide. That is important.

That takes me to where I was going when the noble Lord, Lord Thomas of Gresford, intervened—the amendment in his name and that of the noble Lord, Lord Macdonald of River Glaven. There are two points about that. The first is the point made by the noble Lord, Lord Carlile. Neither this DDP nor, I hope, any DPP needs the straightjacket of being told by Parliament how to do his or her job. They can be trusted to do that without that sort of straightjacket.

[Lord Thomas of Gresford]

My Lords—

[Lord Goldsmith]

Let me just make this point and of course I will give way to the noble Lord. I made the point about that amendment not just because it is surprising that he is putting it forward on the basis that it is intended to restate the law as it stands, because it patently does not do that, but because, as the noble Lord, Lord Carlile, said, it demonstrates the dangers of trying to be prescriptive as to exactly what the tests should be.

[Lord Thomas of Gresford]

I think that the noble and learned Lord misunderstands the purpose behind our amendment, which is not to put a straightjacket around the director, but to give assurance to people who want to come to this country that they will be treated in exactly the same way as a resident or a British citizen would be treated. I should have thought that the noble Lord, Lord Pannick, would welcome that assurance for the purposes of advising his clients.

Sex Offenders Register

Lord Thomas of Gresford Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, can I express my sense of shame at hearing the language that has been used in this Statement? It is precisely the sort of thing that we attacked for years when we were in opposition and I am very sorry to hear that this headline-grabbing language is being used again. Like the noble Baroness, I simply do not understand why applications for the removal of a name from the register should not be made in an open and transparent way before a court. After all, it is the court that imposes the sentence of 30 months, which is the threshold when a person is placed upon the register for life. I see no principle—I see nothing—in this Statement that would assuage my feelings about it.

[Baroness Neville-Jones]

The noble Lord has certainly made his point. I fear there is very little that I can add to what I have already said, by way of explanation to the House, on why the Government have taken the view that they have about the right place to take this decision.

European Arrest Warrant and Investigation Order

Lord Thomas of Gresford Excerpts

Wednesday 26th January 2011 Lords Chamber

[Baroness Neville-Jones]

My Lords, I hope that I have just indicated what we are doing. We think that we need some expert advice, so we have asked Sir Scott Baker to look at the operation of the European arrest warrant. He is due to report in September of this year and the Government will take action in the light of his report.

[Lord Thomas of Gresford]

Does not the Minister agree that habeas corpus is a process and not a principle? It is designed to make sure that a person who is in custody is there legally. If a European arrest warrant has been issued improperly, a writ of habeas corpus will succeed and, if not, it will fail. It is a simple issue and there is no conflict between the principles.

[Baroness Neville-Jones]

My Lords, in this House of legal eagles I hesitate, as a non-lawyer, to get on to the grounds, but I understand that the principle of habeas corpus is indeed a legal remedy against unlawful detention. It is therefore right to say that the European arrest warrant in principle is compliant. I accept entirely, however, that there is dissatisfaction with the warrant’s operation, which is what the Government have asked Sir Scott Baker to look into.

Linda Carty

Lord Thomas of Gresford Excerpts

Thursday 8th July 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I can give the House that assurance. I hope that noble Lords will also accept that, in Linda Carty’s interests, we need to be able to judge the appropriate methodology. Therefore, the fact that we do not necessarily hear a lot all the time does not mean that we are not trying to take the most effective action that we can.

[Lord Thomas of Gresford]

Is the Minister aware that Mexico and Germany took the United States to the International Court of Justice and obtained a ruling that under international law it was illegal to execute a person who had not had the benefit of consular protection? Is the Minister aware that the lawyer who acted for Miss Carty did not obtain such protection? Will this Government take a step similar to that taken by Mexico and Germany in respect of their nationals?

[Baroness Neville-Jones]

My Lords, my noble friend is right to say that part of the problem in this case was that we were not notified by the Texas authorities, as should have been the case. That is one reason why our ability to help Miss Carty has come rather late in the day. As for the approach to the International Court of Justice, I am aware of that precedent. Our current advice is that it is not necessarily particularly helpful, but I certainly do not rule out pursuing that route if we have grounds to believe that it will help.