Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Tuesday 30th October 2012 Lords Chamber

[Baroness Hamwee]

My Lords, a rehabilitation revolution will be welcome. Where I have criticisms, they are intended to be constructive this afternoon and in the further consideration of these clauses, because I want to see that revolution work. My first concern, as other noble Lords have indicated, is that the rhetoric around this should not become all-important and an end in itself. I wonder whether legislation would have been thought to be necessary if it were not for a perceived need to articulate that punishment is a principle of sentencing. It is only a principle. What is essential is that the punitive element does not eclipse or jeopardise the other elements. As my noble friend has said, what may be punishment to one person would not be punishment to another, so the assessment of the court, based on information about the individual offender, is central to the implementation of this, and indeed its presentation. I welcome the discretion of the court.

Designating the primary purpose of, say, education as being punitive worries me immensely. Someone who has difficulty with reading and writing could usefully have the right sort of education. Their problems may stem from dyslexia, for instance. If the response is badged as punitive, that raises a lot of questions about reinforcing negative attitudes to education, and that may lie at the heart of the offender’s problems.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I admit that I have not read these provisions in whole more than once, but when I first read them I, too, thought that this smacked of plea bargaining. My reaction was—and perhaps I should be forced to face up to this—rather more xenophobic than I would really care to admit. Discussing the provisions at this early—perhaps too early—stage has led me to cross out an awful lot of what I might have mused aloud about. We almost need a seminar on this rather than a Second Reading.

My instinctive reaction was, as the noble Lord, Lord Beecham, has expressed, against being able to negotiate and pay one’s way out of trouble and conversely being tempted to acknowledge guilt for the wrong reasons. The foreword to the Government’s response to the consultation says that this will be,

“a more just and effective system”.

I am not sure what “just” means in this context. If it means anything, I think it means something about encouraging a change in behaviour, as the noble and learned Lord has said. Is it effective—as distinct from efficient? I can see that it is efficient but I wonder about effective. If it is effective, it will be effective in deterrence, reparation and so on, and that is my analysis of “just”. But perhaps none of this will matter when we get down to the detail.

The fact sheet that the Ministry of Justice has issued to accompany this says:

“A criminal prosecution will continue to be the most appropriate course of action where an organisation’s alleged wrongdoing is such that prosecution is the only real option”.

I am not sure where I see that in the provisions, except by implication.

I think my noble friend said that the code would be available to Parliament. I understand that such a code may not normally be appropriate for legislation of any type, or maybe not even for public consultation, but paragraph 6(1) says that the code will give guidance on,

“the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case”.

That seems to be such a significant part of the code that it really ought to be in legislation.

Finally, on the requirements to which the noble and learned Lord, Lord Woolf, has referred, I will be interested to know, during the recommitment of these clauses, when it will be thought appropriate that a donation is made to charity and how one reaches that conclusion. There is a lot for us to disaggregate, analyse and understand in this schedule.

[Lord Phillips of Sudbury]

My Lords, I did not expect to be able to be here this afternoon. In many ways, I wish I was not, because I am afraid that I take a rather different view from anyone who has spoken so far—except the noble Lord, Lord Beecham. I sympathise with my noble friend the Minister because this is a really difficult area to address in terms of a change in the law, because plainly the present situation is utterly hopeless.

Following the staggering series of events of the past five years, with the collapse of the financial centres of the world, in particular the City, which has required £80 billion of taxpayers’ money to shore up a system that has, let us be frank, been deeply corrupted—a great deal of the failure of the markets was not through lack of prudential wisdom but through market manipulation and criminality of various kinds—not one single person has been prosecuted and put behind bars. I accept what my noble friend the Minister said in opening, that we need to do something, but what we need to do is not to compromise the basic principle of equality before the law—because that is what we are doing—it is to beef up, hugely, the prosecuting authorities in this country. We have played boys’ games with these matters until now.

I had a meeting with the previous head of the Serious Fraud Office and I think I am right in saying that there are a puny number of highly qualified lawyers there to deal with what are the most difficult forms of prosecution on earth. He told me that his entire team would be outmatched by the lawyers and accountants hired by a bank to face a would-be prosecution that the SFO was considering.

It is not right for us to contemplate this fundamentally unacceptable measure until and unless we have summoned the necessary political will to give the prosecuting authorities a chance of doing their job because, hitherto, we have not. I for one would be willing to see a tenfold or twentyfold increase in the necessary personnel, with the necessary increase in their remuneration. The noble Lord, Lord Beecham, was correct that the disparity in remuneration between the gentlemen and ladies in the Serious Fraud Office and the private sector is crazy. I would confront those difficulties and pay for their remedy. Were there effective prosecutions in this country, the fines that resulted from prosecutions of very large institutions for very large frauds would, I suspect, pay for the increase in the prosecuting resources many times over.

We have to be honest with ourselves and with the country over this. This is plea-bargaining. This is breaking the rule of equality before the law because it places huge, powerful, sophisticated companies engaged in premeditated and long-term fraud in a different position from that of a man or woman had up before the local magistrates for shoplifting. That is another form of economic crime. We are driving a coach and horses through the ancient and proper traditions of this country by giving privilege—that is what it boils down to—to the already rich and powerful. My noble friend said in opening that they are not “getting off lightly”. Well, I have to disabuse him: they are getting off extraordinarily lightly. To start with, there is no naming and shaming. When these matters are brought before the court for approval, there will not be facts there given that will hold up for public contempt the main architects of whatever fraud we are talking about. Least of all will there be prosecution and conviction, which will then of course strike very hard at the reception of that by the individuals who are prosecuted and convicted. Perhaps I may ask my noble friend this important question. Will this legislation prevent individual directors and executives of companies entering into a DPA being prosecuted afterwards for their part in the frauds concerned? If they are not susceptible to subsequent prosecution, that is a further failure of the proposed new regime.

This is a more important departure from the status quo than some may realise. This is pure realpolitik of a sort that it is not right for us to contemplate until— I repeat—we have tried giving prosecuting authorities the resources to deal with the offences being committed. As I have said, we are a million miles from that.