Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, Amendment 97CA is in my name and those of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks. Unfortunately, the noble and learned Lord, Lord Judge, cannot be in his place this evening because he has been attending a funeral.

Amendment 97CA would remove from the Bill the power in Clause 170 for a court to give a direction that the jury can participate in a criminal trial remotely; that is, in a different location to the judge, counsel and witnesses so long as all members of the jury are in the same place. Jury trial is, of course, one of the cornerstones of our criminal justice system—whether you approve or disapprove of the Bristol jury’s decision to acquit the defendants of criminal damage to the statue of Edward Colston. We need to consider very carefully indeed proposals to amend the way in which the jury performs its functions.

I share the concerns about this proposal that have been expressed by the Bar Council and the Law Society. They say that the success of a jury trial depends in large part on a good working relationship of trust and confidence between judge and jury. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that its interests are protected and it is properly performing its responsibilities. Counsel—both prosecution and defence counsel—need to engage with the jury during the trial. All this is so much harder to achieve through a video screen—indeed, noble Lords will be aware of that from when they have participated in parliamentary proceedings through a video screen over the last two years.

This proposed power requires a strong justification. I listened carefully—I always listen carefully—to what the noble Lord, Lord Wolfson, said in support of this power in Committee and indeed in discussions that I have had with him since, for which I am very grateful. The Minister concedes—indeed, he positively asserts—that this Government have no plan to encourage the use of remote juries. Indeed, they have had no such plans in the nearly two years since Covid-19 began to blight our lives. What the Minister says is that it will be good for Ministers to have this power, just in case it proves useful at some stage in the future. I suggest to noble Lords that it is a very bad legislative practice to confer broad powers on Ministers, particularly powers as controversial as these, just in case they might prove useful at some stage in the future.

The Minister will no doubt give assurances to the House about whether and when these powers might be used. The insuperable difficulty with legislating on such a basis is that the noble Lord, Lord Wolfson, cannot bind his successors in office, who may well have different principles and different policies.

I say to the House that these proposed powers, if ever used, would pose a real threat to the effective administration of justice. There is no current need for them.

[Lord Carlile of Berriew (CB)]

My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.

I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.

In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.

So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.

If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.

[Baroness Bennett of Manor Castle (GP)]

My Lords, this group, particularly Amendment 97A, has become pertinent in light of the apparent situation whereby the Attorney-General has displayed something less than a full commitment to the principle of the right to a jury trial. Many commentators are sadly leaping on the Colston four verdict to question the jury system and apparently seek to undermine public confidence in the principle that every person has the right to be tried by their peers. This would be an ideal opportunity for the Minister to reassure your Lordships’ House—I hope he will—that, no matter how politically inconvenient it might be for the Government, trial by jury is fundamental to our justice system and the Government remain committed to it. As the noble Lord, Lord Pannick, said, Amendment 97CA is an important practical step to ensure that that remains a proper, full jury trial, with the kind of interactions that we have heard about.

Briefly, the other amendments in this group are important to protect children and other vulnerable court users. It seems like a basic issue of justice and common sense that the court should ensure that the people who appear by video link are still able to participate fully in the proceedings. I hope that the judiciary would never allow anything contrary to this, although I take the point from the noble Lord, Lord Ponsonby, that the practical sometimes has to override the ideal. None the less, it seems right that the legislation should offer these protections.

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[Lord Carlile of Berriew (CB)]

My Lords, I am pleased to follow the noble Baroness, Lady Chakrabarti, in support of her amendments. I want to start by paying tribute to the Minister of State, the noble Baroness, Lady Williams, who has been extremely accessible and helpful. In an attempt to resolve these issues there have been several discussions, some of them initiated by her, and I am sure that those of us involved would like to place our gratitude on the record. I thank her very warmly.

I reassure your Lordships that I do not wish to repeat what I said in Committee. Indeed, the amendment I put down in Committee has not been tabled on this occasion because of things that have occurred since then. Like the noble Baroness, Lady Chakrabarti, I regret very much that we are dealing with this important debate at such a late hour. Speaking at 11.10 pm takes me back to my days in the House of Commons in the 1980s when, routinely, we had debates at this time of night on matters of importance and principle—something that is now avoided because it is known to be poor practice. Furthermore, I must say to the usual channels, particularly the Government Whips, that there must be oblique reasons behind holding this debate at this time of night. If we look at the result of the last Division, which took place a few moments ago, it is clear circumstantial evidence that if you want to get out of the way something you think you would lose a vote on if it took place mid-afternoon, hold that vote—if it is to take place—somewhere around midnight and you will be quite safe. Those tactics do absolutely no credit to the reputation of this House and I regret very much that my representations were rejected a little time ago by the Government Chief Whip.

This is not just about Sarah Everard or Wayne Couzens. Without commenting on any pending case, there are proceedings pending in which it is alleged—it may not be proved, of course, and I do not wish to comment on any individual case—that other police officers have acted in every bit as outrageous a way as Wayne Couzens. I am in the lucky position of being in a family with five daughters. It may well be that our daughters, who would generally, I hope, defer to instructions given to them by police officers, will now feel unsafe on the streets of London, where they live, unless further protection is given.

This is about a broad principle. We know, because it has been proved in other cases—the noble Baroness, Lady O’Loan, for whom I have the greatest admiration, has demonstrated this in a major inquiry that she undertook—that the police will sometimes strain every sinew to avoid being held fully accountable. Unfortunately, the reaction to the Sarah Everard vigil was outrageous, as the noble Baroness, Lady Chakrabarti, said, and it never received the sort of apology it should have from the Metropolitan Police Commissioner, whose position in this leaves one very concerned. Where, in the end, does ultimate accountability for the police lie when people from the diplomatic and parliamentary division are the culprits in the most serious cases, as Wayne Couzens was?

That is a particular reason why I think it pretty outrageous to be asked to debate these important issues at this time of night. That is not a repetition of a Second Reading point; it is a discourse upon the way in which procedure in this House is, in my view, being abused on this Monday evening.

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[Baroness Williams of Trafford (Con)]

My Lords, I share noble Lords’ frustration that at a minute past midnight I am standing up to respond. I do not think anyone could accuse me of filibustering or frustrating any processes today. It was very unfortunate that we did not start this Report stage until nearly 4 pm because Members were discussing procedure. It is very frustrating that we are discussing such an important topic so late at night.

That said, I thank the noble Baroness, Lady Chakrabarti, for raising this incredibly important issue, and the noble Lord, Lord Carlile. I thank the noble Baroness, Lady O’Loan, for sharing the experiences of her time as chair of the Daniel Morgan inquiry. I again thank the noble Lord, Lord Carlile, my noble friend Lady Newlove, and the noble Baroness, Lady Chakrabarti, for the opportunity that I have had to discuss this issue with them. It is so important that Sarah’s family and the public understand how a serving police officer was able to commit such a senseless crime so that we can stop it ever happening again and restore confidence in our police forces. I think all noble Lords want that.

On 5 October, the Home Secretary announced her intention to launch a two-part inquiry into the circumstances surrounding Sarah’s murder. The first part of the inquiry will look at Sarah’s murderer and his tenure at the Metropolitan Police leading up to his conviction, as well as assessing any missed opportunities to hold him to account for his conduct. The second part of the inquiry will look at any specific issues raised by the first part, which is likely to include wider issues across policing, including, but not limited to, vetting practices, professional standards and discipline, and workforce behaviour.

This is the opportunity to look at any systemic flaws in vetting or issues around policing culture that were highlighted in the amendment. We expect that the separate inquiry established by the Metropolitan Police Commissioner, being led by the noble Baroness, Lady Casey, into the culture and standards of the force will feed into part two of the Home Office-established inquiry.

On the point raised by the noble Lord, Lord Coaker, about witnesses giving evidence, the police forces for which Sarah’s murderer worked will be witnesses to this inquiry, and we expect them all to comply with it. Since February 2020, when we amended the law, police officers have been under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. Failure to do so could amount to misconduct and lead to disciplinary action—something which, during the Daniel Morgan inquiry, was unfortunately not available.

On 22 November, the Home Secretary announced that the chair of the inquiry would be the former Lord Advocate, the right honourable Dame Elish Angiolini QC. Following her appointment, the terms of reference of part 1 of the inquiry have been agreed with her, and they were published on GOV.UK this morning, as noble Lords have said.

The form of part 1 of the inquiry has been discussed with Dame Elish at length, and she agrees that a non-statutory inquiry is the best option to enable her to operate swiftly, allowing greater flexibility to gather evidence relating to Sarah’s killer’s policing career, without formal set-piece hearings. It is imperative for Sarah’s family and the public that we get answers as quickly as possible—I do not think that anyone demurs from that. This will enable Dame Elish to start part 2, looking at policing more broadly, in short order after the conclusion of part 1, which I know the amendment of the noble Baroness, Lady Chakrabarti, seeks to achieve.

Also agreed with Dame Elish is that, should she feel that she cannot fulfil the terms of reference operating on a non-statutory basis, and should official advice concur, it can be converted. I am not sure that the Sky News quote entirely reflects the Home Secretary’s words. That point about the conversion is set out in the terms of reference, and it is not only that: I can advise the House that, in coming to a decision on whether to convert the inquiry into a statutory inquiry under the Inquiries Act, the Home Secretary will be strongly guided by the views of Dame Elish. So, to quote the noble Lord, Lord Coaker, we are not saying, “No, we have already decided”. We have not. Under the Inquiries Act, the Home Secretary is required to consult the chair on any decision to convert the inquiry, and the chair’s views would be expected to hold considerable weight. I hope I have been able to satisfy noble Lords on that point.

I understand the noble Baroness’s point that confidence in the police among women, particularly younger women, has been rocked by Sarah’s murder and other cases that are coming to light—I share those views. This is analogous to the impact that the failings in relation to Stephen Lawrence’s tragic murder had on black communities. I understand how powerful it was for Sir William Macpherson to hold the Metropolitan Police to account in public over 20 years ago and I agree entirely that women deserve answers and, moreover, assurance that they are safe in the hands of the police.

I do not think, however, that we should be tying the hands of Dame Elish and the Home Secretary on the scope or nature of part 2 before part 1 has even started in earnest. It is important that these considerations can be informed by Dame Elish’s emerging findings from part 1; the work of the noble Baroness, Lady Casey; and the policing inspectorate’s thematic inspection of vetting and countercorruption. Only then can we ensure that part 2 looks at the critical issues for policing and does so in a way that allows those affected, including victims, to have their voices heard.

I reassure this House that the Home Secretary will consult Dame Elish on the scope of part 2 and the form that it should take to proceed efficiently, effectively and with the confidence of those whose trust in policing has been eroded. Specifically, Dame Elish’s view and official advice will form the basis of whether the Home Secretary will put part 2 on a statutory footing.

The noble Baroness, Lady Chakrabarti, has prayed in aid the experience of the noble Baroness, Lady O’Loan, with the Daniel Morgan inquiry but, since the evidence-gathering phase of that inquiry, we have—as I said earlier—introduced a duty of co-operation on police officers, which means that failure to co-operate with an inquiry or similar could now be a disciplinary matter, with dismissal being the ultimate sanction possible. There are now sanctions that were not available before.

Amendment 108 seeks to address legitimate concerns that individuals, particularly women and girls, may have at the prospect of being arrested or transported in a police vehicle by a lone officer. The noble Baroness is absolutely right to highlight how important it is that police officers use their powers of arrest legitimately and in line with statutory guidance, and to recognise how public confidence in the police has been shaken by the appalling circumstances of Sarah Everard’s murder. I understand the concerns raised by this case, and the Government have been very clear that they intend to take action as a result. However, the law does not take a detailed view on the way officers use their powers, as long as they are doing so lawfully and legitimately. I do not want to see officers’ discretion over the legitimate use of their powers restrained in ways that could lead to individuals escaping justice or evidence being lost, as could be the case if officers were legally prohibited from transporting arrested individuals alone.

As for Amendment 109 and the noble Baroness’s proposed addition to the PACE codes—which she now attributes to the noble Lord, Lord Carlile—to cover transportation of arrested persons, I will commit to keep this suggestion under consideration when we next undertake amendments to the code. I am aware that some forces, including the Met, have issued guidance to their officers for situations where they may need to approach a member of the public while operating alone. This is only the beginning of this conversation, and there will be more for all forces to do to ensure that the public, and women and girls in particular, have confidence in the way officers use their powers as they carry out their vital—

[Lord Carlile of Berriew (CB)]

I apologise for interrupting the noble Baroness, and I am grateful for what she has just said, but I want to go back to a previous point, if I may, because I think we would like an answer to the question I am going to pose at some point in her speech.

During the course of her comments earlier, the Minister said—and I think this was a little bit of movement—that the Home Secretary would be “strongly guided” by the views of Dame Elish Angiolini on whether the second part should be converted to a statutory inquiry. My question, and it is really a legal question for which I apologise, is this: if Dame Elish makes a reasonable request for conversion to a statutory inquiry and unreasonably the Home Secretary refuses that reasonable request, would that refusal then be subject to judicial review, and do the Government recognise that to be the case? I am sure that the question I have posed is a typical barrister’s question, in that I know the answer to it, but it would be nice to hear from the Minister that that answer is recognised because it may make a difference to the attitude of some noble Lords, as to how they view this issue, if it comes to a Division of the House.

[Baroness Williams of Trafford (Con)]

In my limited legal knowledge, a judicial review questions the process rather than the decision, so I am sure a judicial review could be sought on the process by which the Home Secretary refused, despite the advice of the inquiry chair. I think it is important to bear in mind that the Home Secretary has chosen Dame Elish because she has confidence in her, and the way in which they work together through this inquiry process will be absolutely crucial, not only to its outcome but to the confidence of both women and the public in general. That is, I think, the answer that I could give at this point. The noble Lord is looking a little bit doubtful.

[Lord Carlile of Berriew]

I apologise for intervening again. I have got my second wind; it is now tomorrow, which is not commendable. It is a simple question: is it recognised by the Government—and it may be that the Minister would have to take advice on this, which I recognise she might get from the noble Lord sitting next to her—that an unreasonable refusal by the Home Secretary would be, potentially at least, judicially reviewable?

[Baroness Williams of Trafford (Con)]

The noble Lord is talking in theory. Anything is possible. I cannot say whether, in the circumstances of the Home Secretary’s refusal and Dame Elish’s advice, the outcome would be reasonable or unreasonable, but it is important that we go into this with the Home Secretary very clear that she will be guided by Dame Elish. That is the thing to take away from this.