Criminal Justice and Courts Bill

Debate between Geoffrey Cox and Elfyn Llwyd

Monday 1st December 2014 Commons Chamber

[Mr Cox]

I hear the Secretary of State, but the Bill does not refer to “minor technicalities”; as the Bill reads, the default position would be that any abuse of due process or power could be justified and defended on the basis that the decision would in any event probably have been taken. It is difficult to make “exceptional circumstances” clauses work, because the courts say, “Well, ‘exceptional circumstances’ cannot mean a lack of fairness or an abuse of power.” I have spent many years examining these kinds of clauses and arguing them in the courts, and I know that “exceptional circumstances” clauses are rarely invoked, because courts are reluctant to acknowledge them as a standard resort in such circumstances. It would take something extreme indeed for a court to be persuaded it was exceptional. On the other hand, abuses of power happen quite often, I am afraid, and the clause is likely to condone those abuses of power, whereas often where there is an abuse, it is right that the decision be taken again.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Lords amendments 97 to 102 were carried in the other place to ensure that courts maintained their discretion in determining whether to grant a judicial review by making use of the “highly likely” test. Groups such as Justice have rightly concluded that if these amendments are defeated, it will change the role of judges by inviting them to second-guess how decisions might otherwise have been taken. From his experience, the hon. and learned Member for Torridge and West Devon (Mr Cox) has detailed some very potent arguments why the amendments should be upheld. Parliament should never seek to undermine the courts’ discretion; courts should be free to determine whether to apply the “no difference” test, and to legislate otherwise would impede the integrity of our legal system. I therefore support these amendments.

Lords amendments 105 and 106 would allow the courts to consider the circumstances of individual cases in determining whether to grant an application for judicial review, even in cases where third-party information is not readily available. In clause 66, the Government have tried to find yet another means of limiting the circumstances where applications for judicial review can be heard. The amendments seek to ensure that applications can be heard in cases where third-party information is not easily available.

Judicial review is often the only means by which individuals can hold the Executive responsible for wrong -doing, yet the Government are trying to shut down that avenue for redress. The Joint Committee on Human Rights has said it sees no evidence to support the Government’s reforms, and neither does Justice, Liberty, JustRights, Human Rights Watch, the Howard League, Redress, Inquest, Mencap, Amnesty International—the list goes on. Can anyone report which groups actually support the Government in these changes? [Hon. Members: “The Whips.”] Yes, the Whips.

On clause 67, Lords amendment 107 would maintain courts’ discretion over whether to order an intervener to pay the costs of relevant parties and vice versa. As drafted, the Bill would compel the court to order interveners to pay such costs, other than in exceptional circumstances, as we have heard from the hon. and learned Member for Torridge and West Devon. The provisions in clause 67 are among the most disturbing in the Bill. Unamended, the clause would ensure that charitable organisations and individuals with expertise could no longer enrich the opinion of the courts by intervening in cases where their expertise would be of use because they could not justify the risk to their trustees, funders or members of supporting litigation. As the noble Lord Carlile asked in the other place:

“How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?”—[Official Report, House of Lords, 30 June 2014; Vol. 754, c. 1607.]

Yet the plans would still allow Departments and corporations with huge funds to intervene and hence play a pivotal part in the development of public law.

I ask the House to reconsider the Government’s proposals in the context of the various and—I am trying to avoid vitriol—crippling reforms to access to justice in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As a result of the significant cuts in that Act, more individuals will be looking to charitable organisations for support in getting justice. It seems to me that clause 67 will take away this last resort. I am afraid the Government seem intent on restricting access to justice so that only those with the least to lose can gain redress. Why do they think it necessary to pursue this agenda, which will throw the baby out with the bathwater, despite the perceived misuses of the law relating to judicial review? The hon. and learned Gentleman, a far more experienced lawyer than me, has referred to the time-honoured practice of judicial review—the Wednesbury principles and so on—and the practices in place to ensure that Departments act reasonably in all circumstances. Why should we not uphold the individual’s rights to ensure that Departments act reasonably?

In conclusion, Justice said:

“Punitive and disproportionate, these measures are designed to deter any organisation with limited funds acting as an intervener. In practice, this means that – even in important cases with a constitutional impact which reaches far beyond the immediate interests of the parties - the court will no longer benefit from expert advice and information provided from cash-poor and experience rich charities and NGOs.”

I think that says it all. As we heard earlier, senior judges themselves are on the record as saying that the courts are enriched by the interventions of these people, who know exactly what they are talking about.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Geoffrey Cox and Elfyn Llwyd

Tuesday 1st November 2011 Commons Chamber

[Mr Llwyd]

No, like the right hon. Gentleman, I have the highest regard for the right hon. and learned Gentleman and I presume that this evening he is exercising his own right to self-defence by not being here. He has withdrawn from the Chamber and the possibility of being dealt a few blows that could actually hurt him. I say that not in a rude or pejorative fashion but in a semi-jocular way.

Yesterday, I asked the right hon. and learned Gentleman to answer the very question I also asked the Minister: what would be the exact difference in the law after this measure was introduced? Answer came there none from the right hon. and learned Gentleman, except, “Hang on until tomorrow and all will be revealed.” In the past few minutes, the Minister has revealed all and, blow me, I am underwhelmed! I listened intently but reason or logic came there none and changes less still, so I am still none the wiser. “Could it be,” I ask myself, “that the Government are speaking to an audience outside the Chamber?” Surely not; surely, they are not actually addressing an audience outside the Chamber such as the tabloid groups. No, never, that could not be right—I have dismissed that idea.

Currently, a householder may use reasonable force to defend him or herself or another, or in the prevention of crime, which includes defending a person’s property. The new clause therefore does nothing. The use of force in self-defence is governed by common law and the use of force in the prevention of crime is governed by section 3 of the Criminal Law Act 1967. In both cases, the test to be applied is whether the force used was necessary and, if so, whether the degree of force used was reasonable in all the circumstances.

Whether the force used can be considered reasonable is decided according to the circumstances and the danger that the householder perceived him or herself to be in. The beauty of that law is the fact that it is so open, because circumstances change and one looks at the circumstances of each case. We have heard about someone having his ear sliced off and I can tell hon. Members about a case I defended in which, in a public house in north Wales, two families who were not very friendly met up. One was a family of poachers and the other of gamekeepers. Three members of one family jumped on top of one member of the other family in the toilets and the only way in which the lad, who was by himself, felt he could defend himself was by squeezing one of the others’ testicles in the most awful way. It left some permanent damage by the way, so it was not altogether a laughing matter—certainly not for the man involved. Anyway, the question for the court was whether the force used there and then was reasonable in all the circumstances and the court said, yes. So every case is decided on its merits; that is the beauty of the law of self-defence.

I deduce therefore that the only possible justification for the change is to provide some form of clarification and/or, possibly, that somebody is addressing somebody outside. Section 76 of the Criminal Justice Act 2003 clarifies the operation of the common law and section 3 defences as listed in the 1967 Act. The 2003 Act did not change the current test that allows the use of reasonable force and neither, I suspect, will new clause 27.

Nor, indeed, can the Government argue that the law surrounding reasonable force is badly understood by the judiciary—professional or lay. The existing position with regard to property is set out clearly in layman’s terms in the CPS guidance “Self-defence and the prevention of crime”. It says:

“Reasonable force. A person may use such force as is reasonable in the circumstances for the purposes of: self-defence; or defence of another; or defence of property; or prevention of crime; or lawful arrest.

In assessing the reasonableness of the force used, prosecutors should ask two questions:

was the use of force necessary in the circumstances, i.e. Was there a need for any force at all? and

was the force used reasonable in the circumstances?”

The existing law works well and is well understood; 99% of the time it is well applied in courts and I do not know of any great tide of concern that the law needs further clarification.

[Mr Cox]

Of course I agree with almost every word that the right hon. Gentleman is saying, but does he not agree that if the Government first enact section 76 of the Criminal Justice and Immigration Act 2008 they might as well make it complete by including the defence of property? If they are going to bother with section 76 at all, they should make it complete and include the defence of property.

[Mr Llwyd]

I hear what the hon. and learned Gentleman says, and I suppose that that is right, but I come back to my earlier point that the whole process is otiose. I understand what he is saying, and he has logic on his side. We talk about logic, but parliamentary time is short. Yesterday we had to leave out consideration of a raft of important matters relating to social welfare and social justice. None of them was discussed. Yet we have time this evening to talk about something that is unnecessary. So although I respectfully disagree with the hon. and learned Gentleman, he has logic on his side. However, the new clause is not the right vehicle for clarification of the law.

Quite why the measure is being introduced now is rather baffling. I can only presume that it is to please the tabloids and that this Government, like the last, want to convince voters that they are not soft on crime. Those on the right of the Justice Secretary’s party have made clear their aspirations to amend the law on reasonable force for some time now. As far back as 2009, the then shadow Home Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), said that any future Conservative Government would push for prosecutions, and convictions, only where courts judged that the action taken had been “grossly disproportionate”. That would have stood the law on its head. A huge amount of jurisprudence would have emanated from that decision. No doubt the hon. and learned Member for Torridge and West Devon (Mr Cox) and I would have profited from it, but it would have been a bad step in my view. The Conservative party wound back somewhat after that was said.

I am glad that such an extraordinary change to the law has not occurred, at least not yet. As Michael Wolkind QC, who represented Tony Martin, who was found guilty of murder and wounding with intent under the existing law, has said, allowing householders to use force that is not “grossly disproportionate” would amount to “state-sponsored revenge”.

Indeed, an outsider looking in might be forgiven for suspecting that hundreds of people were being prosecuted every year under the current law. But an informal trawl by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had used force against intruders in houses, commercial premises or private land. So that is what we are dealing with and it leads one to question why we are talking about it tonight.

As the chair of the Bar Council Paul Mendelle QC said—it has been mentioned by the right hon. Member for Tooting (Sadiq Khan), but it will stand repetition—

“The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate.”

Paul Mendelle also commented in the same article written in The Times that the present law worked well and was well understood by juries. Again, I ask why we are doing this.

Changes to the law should not be brought about to produce good sound bites. The common law of self-defence already makes it perfectly clear that a householder is able to use reasonable force against an intruder in defence of himself or herself or his or her property. Amending the existing law for no gain in matters of substance will serve only to increase vigilantism and is not a good use of parliamentary time. It could lead to people using excessive force because they think they might be above the law—“An Englishman’s home is his castle” and all that kind of thing. I do not know. It might give out all the wrong signs, not the signs that Ministers on the Treasury Bench hope and suspect they are giving out.

I believe that the new clause has more to do with internal party politics than with policy. We are using valuable parliamentary time to play this out. The amendment is otiose and serves only to play to the drum beat of the tabloid press. I have a lot of time for the Justice Secretary, who is a man of great integrity, but I fear that in introducing the new clause he is dancing to the tune of the tabloids.