Courts: Resourcing and Staffing

Lord Thomas of Gresford Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I regret that the balance and good humour shown by the noble and learned Lord, Lord Saville of Newdigate, in his excellent maiden speech was not available to us during the testing times when we were discussing the legality of the war in Iraq and all the legislation that followed. I look forward to hearing a great deal more from him. I express my personal regret that the noble Lord, Lord Faulks, has decided not to continue in post. I can understand why he has taken that decision.

I also congratulate the noble and learned Lord, Lord Woolf, on securing this important debate and repeat what he said: the system is in a sorry state. The noble and learned Lord, Lord Judge, reminds me of the old Stafford Assizes Court. On the wall was a plaque which recorded the longest trial in English legal history—as I recall, it was a Victorian plaque, and I think it was 17 days, which is very different from the length of trials we get today. I blame the Xerox machine. It was when the Xerox machine came in that we were swamped with paper. Today that mass of paper is scanned and digitised by any sensible advocate, but the huge amount of material now put before counsel is quite out of scale to what happened before.

“Case management” is a good phrase, but what it actually means is constant visits to criminal courts on applications that are unnecessary and, more importantly, unpaid, such as bail hearings and plea and directions hearings. In the last case I appeared in, some two years ago, there were five such hearings for matters which could easily have been resolved over the phone or by email. Most were to inquire how the CPS was getting on with the disclosure of exhibits and unused witness material. Although I was appearing there for nothing to allow my junior to make a living by appearing in other cases, very often there were counsel for the prosecution and for other defendants who had nothing to do with the case who had simply had the papers thrust into their hands by the clerk of chambers the night before.

Problems seem to have arisen with prison production delays. Where is that prison van? How much time do you have to see your client before the hearing commences? Day after day you could have an extra cup of coffee in the canteen well knowing that your client had not arrived. The noble Baroness, Lady Coussins, referred to interpreters. In the case I referred to, the Farsi interpreter was saying whatever he wanted to say rather than translating what was going on. Fortunately my junior was a Farsi speaker, so that interpreter lasted a morning before he was replaced, but a whole day was lost as a result of the freelance interpreter who had been employed in that case. Witnesses get lost. You can always guarantee that if the police go off on a motorbike, that is the end of that. You will never see them again. Jurors are always late arriving and are sometimes not there at all, particularly in London. In the criminal courts, there are computer difficulties with out-of-date equipment and grudging use of equipment such as photocopiers, particularly for defence counsel.

Another issue is social inquiry reports. In my youth, the probation officer was pretty independent and you could reckon that he would give you a fair run for your money on behalf of your client. He now seems to be giving recommendations to the court about the risk to the public of the defendant being at large, very often without even seeing the defendant. That has happened in a number of cases in which I have been involved. Risk is the primary cause why sentences have increased to the extent they have, as the noble and learned Lord, Lord Phillips of Worth Matravers, pointed out. I agree that the level of sentencing has increased beyond all recognition.

There are other problems, including court closure. I come from a rural area. Rural transport is very difficult. It seems to be assumed by the Lord Chancellor that everybody has access to a car and does not have to rely on buses that go once a day. At one time, justice was brought to the people. Magistrates’ courts in my part of the world were held anywhere. I recall appearing in Pwllheli where they had to cover-up the snooker table before the court sat. The doughty clerk of that court was Mr William Lloyd George, later archdruid of Wales, who went under the bardic title of Ap Llysor, which means “son of a solicitor”. Justice came to the people. We had five assize courts. There are now two court centres in Caernarfon and Mold. In reading the Library Note, I was amused that the House of Commons Public Accounts Committee found that in north Wales there is a seven in 10 chance that a Crown Court trial will go ahead on the date specified. The same report says that in Manchester there is only a two in 10 chance of a trial going ahead on the date specified. That is disgraceful, and it just shows the lack of proper organisation that exists at that sort of level. Given the loss of time and wages for victims, witnesses and litigants, it is not surprising that the evidence given to the House of Commons committee was that only 55% of those who had been a witness were prepared to do it again. Some of them had waited for hours, while some were not told why they had been sent home—the defendant had pleaded guilty—so they were unwilling to be witnesses ever again.

My noble friend Lord Lester has dealt with legal aid. Legal aid exhausted me at the time of the coalition Government and I do not propose to go any further on that topic.

The Rolls Building is described by the noble and learned Lord, Lord Woolf, as an exception. I do not doubt for a moment the quality of justice that goes on in that building, which advertises itself as,

“the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world … A centre of excellence for high value dispute resolution”,

with,

“31 court rooms, including 3 ‘super courts’ to handle the very largest international and national high value disputes and 4 courts configured in ‘landscape’ format for multi party cases”.

It also says that it has:

“In court facilities for parties to use their own IT, including electronic presentation of evidence and cabled broadband”.

So when I appeared there some three years ago, I thought I was going to get Rolls-Royce treatment. Far from it. My experience was that it was light years behind the Old Bailey. The equipment was not available for giving an Excel presentation; I was told, “You can’t use that cable; it belongs to someone else who came here and left it behind”. The robing room contained the cleaning staff, who were eating their sandwiches and drinking cups of tea, and the toilets were filthy. I wrote to my noble friend Lord McNally about it at the time, and I hope it has improved.

We were in the middle of a case one day and the alarm system went off. A voice said that everyone had to leave the Rolls Building. There is a circular staircase but it was cracked and we could not get down it. I saw a sign saying “Emergency exit” so I headed for it, but I was stopped by a man in uniform who said, “This is for staff only”. “I could die,” I said, “you’ve got to let me through,” but no, it was for staff only. Ultimately I found myself outside, to discover that it was only an exercise. So do not talk to me about the Rolls Building as being the centre of everything that is good.

Much has been made in this debate about the judicial system. I do not have time to go into that. All I will say is that we need strong judges to deal with government, even more at this time than perhaps at any other. Michael Gove, before he departed, commented on 23 June 2015 that,

“dedicated court staff cope with those snow drifts of paper, archaic IT systems and cumbersome processes … it astonishes businesses and individuals alike that they cannot easily file their case online”.

What a pity that he departed for different pursuits.

The House of Commons Public Accounts Committee, in its report Efficiency in the Criminal Justice System in May 2016, said:

“Central government spending on the criminal justice system has fallen by 26%”.

Where has the money gone? Into prisons. They are building one in my home town, not far from where I live. I hope the new Lord Chancellor has time to buckle down and show that she can reform and run the system efficiently at every level.

Sexual Offences: False Accusations

Lord Thomas of Gresford Excerpts

Thursday 10th March 2016 Lords Chamber

[Lord Faulks]

I am sure that there will be a lot of sympathy around the House and elsewhere for what the noble Lord says. Of course, we must not interfere with police operational independence. However, the points that he eloquently makes about proportionality in view of the death of Sir Edward and the likelihood of any significant evidence one way or another being unearthed at this stage are valuable, and I take them on board.

[Lord Thomas of Gresford (LD)]

My Lords, there are sound public policy reasons for keeping the anonymity of a complainant throughout the trial and beyond, but are there not also sound public policy reasons for giving the trial judge the discretion, after an acquittal, to consider whether the identity of the complainant should be released if he is satisfied that it is a false accusation and not tainted by mental illness?

[Lord Faulks]

The noble Lord makes an important point. But of course, he will know only too well that someone who has had a false complaint made against them is vulnerable to prosecution for perjury, perverting the course of justice or wasting police time, and that an individual has the right to sue for malicious prosecution or defamation. So remedies do exist.

Insurance Industry: Whiplash

Lord Thomas of Gresford Excerpts

Tuesday 1st March 2016 Lords Chamber

[Lord Faulks]

My noble friend is quite right to draw the House’s attention to the very major problem of the significant increase in the number of claims and our large number of claims in comparison with other European countries. One of the reasons that insurers give for settling these claims is that it costs them too much to fight the case. Of course, if our plans to raise the small claims limit to £5,000 come into effect, this will no longer continue to be a valid reason for not contesting claims. Anyone who is notified of what sounds suspiciously like a fraud should not do anything to encourage it. If individuals are invited to take part in such an endeavour, they are potentially committing a criminal offence.

[Lord Thomas of Gresford (LD)]

My Lords, the Minister referred to the court costs. Have the coalition’s policies of banning referral fees produced any results? Has the number of frauds gone down? Are there any statistics on that as yet, following the Insurance Act 2015?

[Lord Faulks]

The Government are attacking this problem on a number of different fronts. Referral fees is one; the LASPO reforms is another; and there is the MedCo portal, which means that all whiplash injuries must go via a neutral evaluation with limited costs. All are contributing to a decrease in the number of whiplash claims, but there are still too many, and we still feel that there is fraud at the root of all this.

FIFA

Lord Thomas of Gresford Excerpts

Thursday 4th June 2015 Lords Chamber

[Lord Faulks]

My Lords, this is a fast-unfolding story. I am sure we can be generous enough to acknowledge the major contribution the United States Department of Justice has made to this matter. In the mean time, we stand ready to assist. It is a fast-developing situation. The SFO has been aware of allegations relating to FIFA for some years. It is keeping the situation under review and is ready to assist in any way it can. We do not think there is a lack of resources. Although the SFO is involved in a number of high-profile and difficult cases, including the LIBOR manipulation, resources are not an issue in this case.

[Lord Thomas of Gresford (LD)]

My Lords, soliciting a bribe is a crime. Will the SFO make inquiries of the members of the England bid team for the 2018 World Cup, which achieved only two votes out of 22 from the committee, about whether they were approached by anybody for a sweetener in relation to their bid?

[Lord Faulks]

The Swiss authority’s investigation is particularly focused on the 2018 World Cup bid on the basis that the jurisdiction is based on FIFA being a Swiss private company. If there is any information that we have in this country, we stand ready to assist on that, too.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, in a debate in the other place shortly after the European convention was signed in October 1950, the Conservative spokesman, Duncan Sandys, son-in-law to Winston Churchill, welcomed the convention as a binding treaty, fashioned as it had been, as other speakers have noted, by Sir David Maxwell Fyfe, later Lord Kilmuir. He said that it imposed a common obligation,

“on all the signatory States, to assure to their citizens the rights which it contains. What perhaps is the most novel and important feature of this Convention is … the setting up of a European Court of Human Rights, to which cases … can be referred for adjudication”.

He added:

“It is rare for a democracy to be overthrown in one single sweep. There is almost always a twilight period, during which human rights and civil liberties are being progressively curtailed and undermined. It is in this critical stage that the publication of the proceedings and the judgments of the Court might very well have a decisive influence”.—[Official Report, Commons, 13/11/1950; cols. 1412-13.]

Emrys Roberts, the Liberal MP for Merioneth, whom I later came to know well, said that the rise of fascism in Italy and Spain and the aggression of Nazi Germany might have been prevented if the human rights contained in the convention could have been guaranteed by all the states of Europe. As the noble and learned Lord, Lord Mackay of Clashfern, said, that was the context in which the convention came into being. Mr Roberts said:

“Every State that refuses to sign the Convention on Human Rights will stand condemned in the eyes of the public of Europe”.—[Official Report, Commons, 13/11/1950; col. 1468.]

As it turns out, the convention and the court have been great successes. In my own field of law, military justice, the successive decisions of the European Court of Human Rights in the 1990s were the decisive influence in causing this Parliament radically to reform the military justice system so as to bring it into line with modern standards of justice. It is dismaying to hear suggestions that the military should be excluded from the protection of the convention, not just for themselves but for the people who may be in their custody. That was an issue that was very live during the second war in Iraq.

The right-wing press with which we are blessed seem incapable of grasping that the European Court of Human Rights is not an offshoot of their hated European Union, and has no power to bind our Supreme Court or to enforce its decisions. Putting aside these misconceptions, it is necessary to grapple with the arguments put forward by the serious proponents of a British Bill, the two junior Ministers now at the Ministry of Justice, Mr Dominic Raab and the noble Lord, Lord Faulks.

First, they are right to argue that some of the judges of the present court lack weight and experience and to point to the huge backlog of cases, but these are questions that have already been addressed. The Brighton declaration in 2012, following the high-level conference under the chairmanship of the UK, called for the court to concentrate on the most serious violations of human rights, for the amending of the convention to enable trivial cases to be thrown out at an early stage and for the continued refinement of the process of selecting judges. The answer is not to remove from the European court the highly experienced and competent British judges but to demand a better system of appointment from other member countries. Perhaps the noble Lord, Lord Faulks, could enlighten us as to how far the Brighton declaration is being followed up.

Secondly, the noble Lord and Mr Raab argue that the European court has extended its remit with a degree of judicial creativity and activism that is unacceptable. They cite in particular the issue of prisoner voting. They regard such a question as falling well within the margin of appreciation that should be accorded to a democratic national order governed by the rule of law. However, that means we stand next to Austria, Bulgaria, Estonia, Georgia, Hungary and Russia; of the 47 countries in the Council of Europe, those are the only ones that have a total ban on prisoner voting, and they are not perhaps the most progressive regimes. Enlightened opinion on this side of the House believes that, as in other major European countries such as France and Germany, it is in the public interest to help to rehabilitate those prisoners who are serving small or medium-term sentences by giving them a stake in the political process. I was interested in the possible solution to the impasse suggested by the noble and learned Lord, Lord Mackay, and no doubt that will be followed up.

A third area of criticism is the question of deportation. Here the argument is that the British courts have pre-empted decisions in Strasbourg by allowing prisoners to resist deportation on the grounds that their rights to a family life under Article 8 of the convention would be breached. Yet in the case of RB (Algeria) in 2009 the noble and learned Lord, Lord Hope, stated that he could find no Strasbourg case where deportation had been overruled on human rights grounds other than under Articles 2 or 3—that is, a risk to life or the possibility of torture. Preventing deportation under Article 8—a risk to family life—is a British-made law. In an individual case, it may indeed be a merciful and just decision. My noble friend Lord Marks was right to point out that most of the decisions that attract such awful publicity are decisions not by the European court in Strasbourg but by courts in this country, upheld very frequently in the Supreme Court.

However, I suggest that the criticisms from the noble Lord and Mr Raab pale into insignificance when compared with the real gains that the convention has meant for the vulnerable in our society. Decisions have led to the protection of people against state power and led to changes in the law and in regulations concerning care homes, child victims of abuse and trafficking, women subject to domestic and sexual violence, those with disabilities and victims of crime.

Today the press have suggested that the Prime Minister is at odds with Mrs May and Mr Gove on the issue of withdrawal from the convention. Good. The shades of Duncan Sandys and Lord Kilmuir will doubtless applaud him, and I am sure that he will have the full support of this House. This is a particular issue where the ancient Salisbury convention, which was invented for another time and another constitution of this House, surely cannot have effect. This House will say no.

Criminal Bar: Funding

Lord Thomas of Gresford Excerpts

Thursday 15th January 2015 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I, too, thank the noble and learned Lord, Lord Morris of Aberavon, for introducing this debate. My interests are declared. I started off as a salaried partner in a small country solicitors’ office in north Wales in 1961 on a salary of £1,000 a year. Despite our limitations, we could provide for our clients the highest quality of representation in criminal cases via the availability of legal aid and the existence of a strong and expert independent Bar. I could and did instruct on behalf of legally aided clients Lord Elwyn-Jones, Lord Hooson, Sir Ronald Waterhouse, Sir Robin David and other distinguished barristers of the Wales and Chester circuit. Incidentally, I was present with Lord Hooson on the last day of the Moors murder trial. I took him for a cup of tea afterwards, which he almost certainly needed after sentencing.

In every serious criminal case, there was a team on both the prosecution and the defence side led by outstanding silks who were capable of guiding the preparation of cases, were accustomed to taking big decisions and to giving wholly independent advice. In those days, there were the resources of time and money to ensure that cases were properly prepared and presented by experienced people, and I believe that the interests of justice and of the community were properly served. I like to think that my own generation at the Bar preserved those traditions and that the quality of service in Wales with outstanding advocacy from Gareth Williams, Alex Carlile and others has made sure that those traditions continue. Those who have succeeded us have struggled with increasing cutbacks. The input of an experienced solicitor in court disappeared long ago, and it is not only on the defence side that standards have slipped. A lack of resources on the prosecution side has also increased delays and wasted time and money.

But while there were difficulties in the recent past, there was nothing on the scale of the cutbacks now being pursued by the Lord Chancellor. In my view, they will destroy the criminal Bar. Like the noble and learned Lord, Lord Brown, I could not possibly advise a bright youngster to embark on such a career at the present time. There is nothing in it; there are no glittering prizes to reward years of study and struggle. Certificates for leading counsel are granted by judges through gritted teeth, and the fees are a fraction of what they once were.

Solicitors concerned in criminal work now have to become solicitor advocates in order to survive financially, and routinely take the work on which entrants to the criminal Bar would in former days have depended, and it does not stop there. If leading counsel today has a junior at all, it is like as not a solicitor advocate with a direct financial interest in the instructing firm. This often leads to inexperienced and insufficiently qualified persons in that important role. If anyone doubts that, I recall a recent case in a court adjoining the one in which I was appearing where the solicitor advocate junior applied immediately for an adjournment when he was called upon to cover for his temporarily absent leader.

Barristers’ fees in the Crown Court account for around £300 million of the criminal legal aid budget. They have been effectively static since 1997, during which period retail prices have increased by 54% and public sector pay by 49.9%. The average annual payment to criminal barristers made by the Legal Services Commission, including all graduated and VHCC cases in the year 2011-12 was £52,000, from which they paid all their expenses, including up to 20% for chambers’ fees.

The Next Steps consultation by the Ministry of Justice was found to be defective in the High Court on judicial review. That consultation paper was introduced with the following statement by the Minister:

“This is a comprehensive package of reform, based on extensive consultation. I believe it offers value for the taxpayer, stability for the professions and access to justice for all”.

I absolutely and profoundly disagree. In that paper, no attempt was made to evaluate the financial consequences of the proposed changes. They were said to be “uncertain”. They are not at all uncertain. They will do significant harm to the criminal justice system by damaging the supply and the quality of the criminal advocacy service. As a result of the judicial review application, last September the Ministry of Justice was forced to disclose the KPMG report which it had commissioned to advise it. Only then did it appear that the ministry had told KPMG to make broad assumptions about cost savings, profit margins and the availability of investment capital for restructuring businesses which appear to have been plucked out of the air and were completely without evidential foundation. Yet after a further three-week consultation forced upon them last September, the Lord Chancellor persisted in adhering broadly to his original cuts, and his conclusions are now again subject to renewed judicial review application. Are the public to be properly served?

When I look around the area designated in north-east Wales, from Llandudno to Llangollen, an hour and a half’s travel, and consider that the two custody suites are at St Asaph and Wrexham, some 35 miles apart, I find it impossible to conceive that the interests of the public in access to justice, whether in the English or Welsh language, can be served by the wholesale reduction of legal aid contracts to two firms of solicitors. The knock-on effect on the local Bar in Chester will be considerable.

The response to the original Next Steps consultation by Treasury counsel, which conducts the most serious and complex prosecutions in this country at the Old Bailey, put the position very well, saying that:

“skilled and experienced defence advocates, whose capacity and ability inspires the confidence of the court, the prosecution and their professional and lay clients … shorten, straighten, sustain and hasten the trial process: their continued presence is nothing less than vital”.

As the noble and learned Lord, Lord Brown, pointed out, our judiciary is largely drawn from experienced counsel. Destroy the Bar and the whole foundation of our judicial system is put at risk.

Criminal Justice and Courts Bill

Lord Thomas of Gresford Excerpts

Tuesday 9th December 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am moved to continue with Wales because I acted for my community—the Gresford community—when there was a proposal to opencast mine part of Gresford colliery at a time when there were about 260 bodies still buried in it as a result of the 1934 disaster. Your Lordships will appreciate how people felt about that: they felt that there had been a stitch-up between the National Coal Board and the local authority.

Since the matter had not been properly advertised, we took it to judicial review. We could not, however, expect every member of the community to be involved, so a committee of about eight people was set up to instruct solicitors and counsel to appear on this judicial review. It is those eight people I am thinking about, who might be found liable for costs. I can tell your Lordships that even then—back in the 1970s or maybe the early 1980s—costs were a considerable issue for these people before becoming involved in this matter. The result was that the judicial review was successful. The county council advertised properly and the villagers —the community—then made contributions to the consultation that took place. Although the decision to permit opencast mining went ahead, it was with very stringent conditions. The National Coal Board was very concerned to keep to those conditions, so the work was carried out strictly in accordance with them and the land was replaced to such a degree that it is now the training ground for Wrexham Football Club. Your Lordships will appreciate that in that case a decision was taken that excluded a community which had the highest sensitivities about what had happened. The fear of costs was something that might have deterred that successful action altogether.

[Lord Brown of Eaton-under-Heywood (CB)]

I wish to support the Motion of the noble Lord, Lord Pannick, and resist the Minister’s Motion on rather a broader basis than perhaps has been suggested so far. The problem, or one of the problems, with the Minister’s Motion is that it leaves intact the central thrust of Clauses 65 and 66, which were of course objected to and disagreed with by the Commons on the basis set out in Commons Reason 106A:

“Because it is appropriate to impose duties, rather than confer discretions, on the High Court”,

et cetera. My deep disagreement with that basis of rejection is that I do not believe it is appropriate in this jurisdiction to impose duties and to narrow or eliminate discretions on the part of the judiciary.

In Committee in July, I suggested that it is difficult to think of any area of law less suitable than this one for this sort of legislative interference. We are here concerned with the inherent supervisory jurisdiction of the courts to hold the Government to account; to ensure that the rule of the law is observed when the Executive take action. Yet here is another example of the Government seeking to weaken those powers with the inevitable chilling effect, and in many cases making it practically impossible to bring a challenge. The fresh ministerial amendments still leave intact the provision that you cannot bring judicial review unless you give a whole series of particulars about how the process is to be funded.

In that same debate, the noble and learned Lord, Lord Mackay of Clashfern—my respect and admiration for him is second to none, not least since he had the sagacity 22 years ago to promote me to the Court of Appeal—rightly pointed out that it was the judges themselves who had originally sought to underpin the rule of court under which judges had previously exercised their judicial review jurisdiction by giving it legislative form. Thus was enacted the section of which the noble and learned Lord, Lord Woolf, spoke a little earlier: Section 31 of what used to be called the Supreme Court Act but, since the invention of a Supreme Court, is now called the Senior Courts Act. However, it must be recognised that Section 31 merely facilitated the exercise of the judges’ supervisory jurisdiction; in no way did it seek to constrain, limit or inhibit it. It imposed no duties on the judges and you will search it in vain to find such.

Now, though, in this clause, as in the one that we discussed a little earlier, the Government are intent on seeking to eliminate the judges’ powers and to impose duties upon them. I echo what the noble Lord, Lord Deben, said about the earlier proposal: this is an amendment of constitutional importance. In truth, it is not a party political matter. It is a question of where the boundary should be drawn between the Executive and the judiciary. The judiciary in this country, unlike its American counterpart, has always fully recognised the sovereignty of Parliament. We do not strike down primary legislation. Parliament, in turn, has not hitherto sought to whittle down the judges’ supervisory jurisdiction, and it is really inappropriate that they should now start to do so.

If the Government have their way on this or, on reconsideration later, on the previous or the next amendment, the constitutional balance will have shifted. The fact is that the Motions that the noble Lord, Lord Pannick, is advancing are ones that are truly worth fighting for.

Criminal Justice and Courts Bill

Lord Thomas of Gresford Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, my name is added to a number of these amendments, and I will not repeat everything that has already been said, most especially by the noble Lord, Lord Pannick, the noble and learned Lord, Lord Woolf, and my noble friend Lord Marks. However, I cannot let this debate pass without making three comments about the unusual speech made by my noble friend Lord Horam.

First, his speech was inaccurate. He blamed judicial review for delays in infrastructure development and for making infrastructure development more expensive. Had my noble friend taken the trouble to read the successful judicial reviews of infrastructure development, he would have found that in 95% of the cases—and I may be underestimating that—the judicial review was granted because of the incompetence and sloppiness of officialdom ranging from government departments through to local authorities and other statutory organisations. The answer to that is for those public authorities to prepare their cases properly, to make their planning applications in due form and for Ministers, in appropriate cases, to call in major planning issues so that they can be decided more quickly.

Secondly, my noble friend’s speech was unusually statist. In his career he has, in a very distinguished way, exercised his principles repeatedly, having been a member of three political parties. As I understand it, he left his first party—the old Labour Party—because he regarded it as too statist, yet nothing could sound more statist than what he said just a few minutes ago. I am personally in favour of HS2, fracking and the Severn barrage.

[Lord Thomas of Gresford (LD)]

Hear, hear.

[Lord Carlile of Berriew]

My thanks to the noble Lord, Lord Thomas. However, I would be the last person to deny those who are opposed to those sometimes controversial schemes the opportunity to question them, if appropriate, by way of judicial review. Taking the contrary view is statism of the most extraordinary kind.

Thirdly, my noble friend’s speech was unjust because it seemed to remove the notion that there should be issues of principle about which people can take dramatic action. He has done it himself twice by changing parties as he moved from old Labour towards the party which he now represents with distinction in your Lordships’ House. However, that is the sort of exercise of principle, on more than one occasion, which the noble Lord, Lord Pannick, was talking about in moving the amendment. These are not pragmatic actions over small sums of damages; they are actions over great issues of principle. Even if some claimants would not actually win their personal actions for judicial review, we know, from the cases which we have all read and in which some in your Lordships’ House have appeared, that enormously important issues of principle for the future arise from them.

I will stray into future amendments, as others have done. Some of those points of principle have been made extremely successfully by interveners—NGOs that have chosen to put in submissions. Some have done so so effectively that their written submissions have changed the course of a case. Surely we should not inhibit justice by these rather mean provisions, which, in my view, my party—the Liberal Democrats—should never have given a single piece of powder or a single piece of shot to support.

Criminal Justice and Courts Bill

Lord Thomas of Gresford Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Faulks]

I am very surprised that the noble Lord thinks that somehow the Ministry of Justice has failed to notice that it costs the Government a great deal of money to keep prisoners in custody. It is painfully aware of that, and of the cost. However, the ministry is also aware of its obligation for the protection of the public, and it is in balancing these issues that it comes to the very difficult decisions that it has to reach.

It is right that offenders serving indeterminate sentences—IPPs—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. There is evidence that IPP prisoners who take the opportunities presented to them to reduce their risk are beginning to achieve release in greater numbers. Since 2010 the number of IPP releases has grown, and we have seen over 400 IPP releases in 2012 and 2013. The percentage of IPP cases considered where release was ordered was 6% in the 2010-11 report, whereas in the 2012-13 report the figure was 16%.

Of course, we keep the matter under review. The amendment, as I understand it, would effectively lead to the prisoners who are within the scope of the amendment being automatically released, as it would mean that there was no discretion for the Parole Board to do other than to direct release. That is not the Government’s policy, as noble Lords are aware, and I will be unable to accept the amendment on those grounds.

I should also say that there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle. The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release IPP prisoners who had a tariff of less than two years. Section 128 is not about the duty to release indeterminate sentence prisoners but, rather, gives the Secretary of State the power to change the Parole Board’s release test by order. The amendment, however, appears to direct the Parole Board to release certain prisoners without any consideration of a test whatsoever.

The noble and learned Lord, Lord Lloyd, to whom I pay tribute, as others have, for his tenacity and his great concern for these prisoners—indeed, concern has been expressed for them all around the House—suggests that the amendment would be a gentle push. With very great respect to the noble and learned Lord, as it is currently expressed the amendment would be a very firm shove indeed. However, I understand that the intention is that these particular prisoners would be released at the point at which they would naturally fall due for Parole Board review, thus phasing their release. Presumably, the retention of the Parole Board’s role in the process is designed to align as much as possible with the current statutory arrangement. However, it would be problematic to give the duty to release to the Parole Board if in fact there was no discretion for the board under this proposal. For these reasons, I do not think that the amendment is the right way to achieve the noble Lords’ objectives.

However, in turning away and facing the principle rather than the detail, the noble and learned Lord, Lord Lloyd, has chosen to concentrate on those with tariffs of under two years, who he suggests have been particularly disadvantaged as they could not have received an IPP after the 2008 changes to the IPP statute. In fact, it remained possible to receive an IPP with a tariff of lower than two years until IPPs were abolished, where the offender had a serious previous conviction, and a fair number continued to do so. While between 2005 and 2008 courts were obliged to impose IPPs in certain circumstances, this was only where they found the offender to meet the dangerousness threshold. The statute, however, did not oblige courts to find the offender dangerous if he had a previous Schedule 15 conviction and it was clear that the court need not conclude that a previous conviction made the offender dangerous if it would be unreasonable to do so.

The noble and learned Lord, Lord Lloyd, and some other noble Lords have seen an analysis of the management information that was put together last year relating to the situation of IPP prisoners who were sentenced before July 2008 with tariffs of under two years who remained in prisons and whose tariff had expired. It is the Government’s view that this analysis supports that position in respect of the group. It provided clear evidence that the continued detention of short-tariff IPP prisoners remains justified and that the Parole Board still considers that in many cases they pose an unacceptable risk to the general public and to themselves. The majority—80 prisoner cases of the 100 sampled—were assessed as at high risk of serious harm, whereas none was assessed as being at no risk of serious harm. Almost all of that sample had had recent parole hearings and were deemed unsuitable for release. However, the fact that 11% of the sample were in fact approved for release clearly also demonstrates that, where risk has been reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.

I know that many noble Lords keep themselves closely informed of the National Offender Management Service’s ongoing work to enhance support for this group of prisoners, but a brief reprise of those efforts bears repeating. We have come a long way in terms of management and support since the introduction of the sentence. For example, NOMS has made substantial improvements to the waiting times for IPP and other indeterminate-sentence prisoners. Once they have been approved for open prisons, in addition IPP prisoners have improved access to accredited programmes and they remain a priority group for interventions. Sentence planning instructions have been overhauled to emphasise that there are a range of interventions, not just accredited programmes, that can provide useful evidence for parole hearings. This has also been emphasised in discussions with Parole Board members. Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs, such as learning difficulties. NOMS will continue to oversee positive changes to the management of IPP prisoners. As I said earlier, the reality is that IPP prisoners are now achieving release in greater numbers under the current arrangements.

[Lord Thomas of Gresford]

Before the Minister moves on, regulations were passed to permit lie detector tests to be carried out in respect of prisoners who are subject to IPP provisions. Are those tests carried out and, if so, what is the result? I have been informed by an experienced organisation that it is necessary to pass a lie detector test in order to establish that the particular offender is not at risk.

[Lord Faulks]

I am not aware of the question of lie detectors and whether or not they are used. I will write to the noble Lord when I have some information about it.

Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and inclusion, including offenders with complex needs, as I was indicating. I was asked about the case of James, Wells and Lee. The noble Lord, Lord Wigley, pointed out that the decision was that the retention of those prisoners was contrary to Article 5.1 and was therefore an arbitrary detention. I dare say that he will know, from having studied the decision, that the European Court of Human Rights did not hold that the sentence itself was unlawful. It was the unavailability of courses that was considered to be a breach of Article 5.1. I am sure the noble Lord would accept that it is simplistic to suppose that attendance at a course would automatically result in someone being appropriate for release. Clearly, it is carefully managed to ensure that so far as is possible those courses are reached. Those who attend the courses will not necessarily be eligible for or suitable for release. Equally, some who do not will be. However, I accept it is a matter of considerable assistance.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the construction of a statutory duty is a matter of the purpose as construed on examination of the relevant statute. In response to a debate about this section, the Lord Chancellor’s predecessor, Kenneth Clarke, said that he would look at progress after the LASPO changes had taken effect. I mentioned earlier that the rate had increased. The position is—I am afraid this is more or less the same answer that I gave in the debate initiated by the noble Lord, Lord Wigley—that there are no current plans to review the release test for prisoners serving IPP sentences whose minimum term has expired, although we continue to use a range of measures to improve their progression and reduce the risk that they pose. The Government’s position is that it is right that IPP prisoners continue to serve their sentence until they are assessed as safe to be released into the community by the Parole Board. The Government were left with this rather crude device by the previous Government. They repealed it, but none the less they have to be extremely mindful of what lay behind the introduction of this provision; namely, the protection of the public. I accept that there is great concern that those who would have received a lower tariff sentence might seem on the face of it to be languishing in prison for far too long. However, there are factors which I have attempted to draw to the Committee’s attention which do not, in the view of the Lord Chancellor and the Government, warrant a change of approach to that discretion.

Of course, it is a matter of anxiety. While others are attending the opera, I am—as the noble Lord, Lord Wigley, would have it—having sleepless nights. However, the duty of the Government remains to protect the public, notwithstanding the persuasive arguments that have been put forward by noble Lords. I ask the noble and learned Lord, Lord Lloyd, to withdraw the amendment.

Justice: Academic Research on Jury Decision-making

Lord Thomas of Gresford Excerpts

Wednesday 12th March 2014 Lords Chamber

[Lord Faulks]

My Lords, at the present time, any researcher into this area has to obtain authorisation sponsorship from HM Courts & Tribunals Service and then apply to the data access panel, whereafter various safeguards, including anonymity and safeguards to ensure that the conviction or the innocence of a particular defendant is not called into question, will be made part of that condition. There is research. For example, Professor Cheryl Thomas has provided valuable research on this issue.

[Lord Thomas of Gresford (LD)]

The Minister has referred to Professor Cheryl Thomas of UCL, who produced a report for the MoJ in 2010, Are Juries Fair? One of her findings through talking to 797 jurors was that only 31% of them understood the directions in law that the judge was giving to them at the end of the trial. She recommended that, in every case, written direction should be given by the judge to the jury. Has that been carried out?

[Lord Faulks]

Directions to the jury are a matter for the judge in the individual case. Judges are making ever more use of written directions, particularly in difficult cases. Very often, they will provide a direction having heard submissions from both prosecution and defence counsel so that they can arrive at an agreed direction. They will give the direction orally and then again in writing. In simple cases, that may not be necessary, but in other cases it is clearly desirable.