Queen’s Speech

Earl of Lytton Excerpts

Monday 9th June 2014 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, the gracious Speech refers to a fairer society. The Minister mentioned the Criminal Justice and Courts Bill, and rightly referred to the importance of the rule of law. However, I start with the Home Secretary’s address to the Police Federation on 21 May. She made a welcome promise of better protection for whistleblowers in the police. People such as James Patrick have put their entire careers on the line for the truth. However, the proposed new offence of police corruption is otiose. We already have laws enough on our statute books, although of course police co-operation in investigating themselves may be in doubt.

The Home Secretary suggested that leaving police operations unfettered would resist political pressures but that, to me, means inadequate oversight despite the beefing up of Her Majesty’s Inspectorate of Constabulary. Operations at the front line will always trump policy. We still have many questions but few answers to the points raised about police culture and operations. A senior judge has recently questioned the objectivity of that other safeguard, the IPCC, as mentioned by the noble Baroness, Lady Smith of Basildon.

Under anti-social behaviour legislation, the police have virtually untrammelled and incontestable powers. They decide ab initio who they think is the guilty party. The rampantly one-sided exercise of these in a case involving a Sussex MP has been corroborated by cases in south Wales, Devon and Cornwall, Thames Valley and, in the most recent, from Hampshire, police evidence seems to have been total fiction. I have been shown custody records altered post hoc to refer falsely to a more serious offence of violence. I have seen manifestly concocted properties for legal photographs used to procure convictions in magistrates’ courts. This I now find is very easy to do, and applies also to CCTV and audio files. This material is increasingly used as evidence in court proceedings. All that is required is slackness by witnesses and prosecution, and the guidance of ACPO on digital evidence to be ignored, and you have a recipe for misleading the court.

I learn of serious failure of prosecution to disclose documents as required, and of failure of defence teams and judges to ensure compliance. The Attorney-General’s recent guidance identifies this as a threat to a fair trial. I hear of documents that are unsigned or undated, possibly even forged, being accepted by the courts, and a failure to safeguard the interests of people under rulings from the Court of Protection.

Much of this is ongoing, with frequent accounts of files lost, court records deleted or unavailable, police notes absent or officer amnesia in the witness box. A solicitor categorised this for me as “gaming” the provisions of Section 117 of the Criminal Justice Act 2003, because a police witness cannot be cross-examined on something he has forgotten, and if the only other evidence is documentary or electronic, however faulty, then that must stand unless the defence can have the evidence struck out: effectively a reversal of the burden of proof. It would also appear from a recent BBC “File on 4” programme that these and allied manipulation of rules of evidence and procedure continue at the highest administrative and professional levels.

Withdrawing most legal aid—a principle I applaud as a general concept—but without rendering the system of justice accessible and affordable to normal folk, as mentioned by the noble Baroness, Lady Deech, seems to be a flawed policy. I question why two legal experts are required to represent a criminal defendant. However, if undeserving types were gaming the legal aid budget beforehand, we now appear to have police and prosecution gaming the procedures to the detriment of fair trials. Add these together and we have a situation once described to my father by his lawyer as follows: “Where there is muddle and confusion, dishonesty follows close behind”. I try to remember that.

Once an offence, police notification or occasion of arrest is established, the details go into a police computer system. The citizen does not have rights, or certainly has no adequate rights, to gain access to or check that for accuracy, yet may find material regurgitated at some future date in proceedings, shared with other agencies or disclosed in a CRB check. Necessary protections before the law remain inadequate, open to abuse, and are being manipulated to the unfair disadvantage for defendants in criminal proceedings in particular. This erodes trust in a vital sector of public administration. That imperils the rule of law and ultimately, the stability of society. Oversight must be restored. Senior law officers within the Government have long been aware of the situation, so why no action?

We should not be complacent or wag our finger at other jurisdictions, while all the while corrupt practices infect our own affairs. The Government need to act now—or if not this one, now, then a new one in 2015.