Crime and Policing Bill

Lord Faulks Excerpts

Wednesday 11th March 2026 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thoroughly welcome these sensible and proportionate amendments in the name of the noble Lord, Lord Pannick, which he more than ably explained. I was prompted to speak on Amendment 393B having just read the Government’s Protecting What Matters action plan. I have plenty to say on that, but your Lordships will be relieved that I am not going to do so now.

In the plan, the Government readily admit that trust in institutions is in decline and that social cohesion is fraying. I am concerned that, if Clauses 168 to 171 go through unamended, it could create a problem of further distrust in policing. Despite the noble Lord, Lord Carter of Haslemere, saying that there is not a huge gap between the amendment and the Government in relation to presumed anonymity for armed police officers, the Government are proposing an unprecedented rejection of the principles around open justice and, more importantly for me, press freedom. I am concerned that the clauses will limit the ability of the press to report in any meaningful way on cases involving the use of lethal force by police officers.

Replacing the presumption of anonymity should not leave officers vulnerable or unsafe, but the amendment would allow the power to grant anonymity if there are specific risks to safety or if it is in the public interest, to prevent harm. This is a blunt instrument. It would set up a privacy regime that would shut the media out from scrutinising the state’s exercise of power with guns. I cannot see how the public will not see that as covering up when the media will be denied any meaningful opportunity even to contest such anonymity, let alone to report. That is the concern. I am sure that the Minister will explain.

It is interesting that the police have recently been asking for greater freedom to release more details in relation to some investigations. This is not in terms of armed police, but police forces have recognised that suppressing information can lead to misinformation. That can turn nasty if the public feel that there has been a cover-up.

That is a move to transparency to ensure public consent and build trust, which goes in the right direction. I am just worried, although it is not their intention, the clauses will be a step back from a duty to have candour and from the state being transparent when, as the noble Lord, Lord Pannick, pointed out, an armed officer representing the state takes another human being’s life. We should not just grant automatic anonymity in that way. We have to at least allow the media to ask questions and scrutinise.

[Lord Faulks (Non-Afl)]

My Lords, my name is on the series of amendments that the noble Lord, Lord Pannick, has spoken to, and I will make a few brief comments in support of them. Before I do, I shall make a few observations about Amendment 394. The noble Lord, Lord Davies, has not yet spoken to it, and he may be able to answer all the points I will make.

I start by saying that I share—with all noble Lords, I think—concern and admiration for the police generally, particularly for police officers who undertake willingly the task of bearing arms on our behalf in circumstances that may conceivably lead to serious harm to them and which call for difficult judgments to be made, often on very little information and in a split second. I entirely understand the concern.

I also wonder whether all these amendments are not significantly inspired by the Chris Kaba case and the officer, Martyn Blake. As to the decision not to grant him anonymity, it is very arguable that the judge came to the wrong decision. But, of course, we must bear in mind that hard cases make bad law and that there is a danger that, from one case, we then proceed to legislate in a way that overreacts and makes a change which is not really justified.

I will deal with Amendment 394, on presumption against prosecution. I am concerned about this. The idea of a presumption against prosecution does not find its way into the criminal law very often. I was able to find only one, the much-criticised Overseas Operations (Service Personnel and Veterans) Act 2021, where the then Conservative Government brought in a limit to the prosecution—a legal threshold in relation to overseas acts by serving forces rather than police officers. In certain exceptional circumstances there would be a presumption against there being a prosecution after five years. That was much criticised. What I struggle with in this amendment is that, before any prosecution is brought—the Minister will know this better than anyone, really, in your Lordships’ House—there has to be a consideration of whether there is sufficient evidence to prosecute, and, secondly, whether it is in the public interest to prosecute.

The factors referred to in this amendment, for example, in proposed new subsection (5)—

“In making a decision to which this section applies, a relevant prosecutor must give particular weight to the following matters … the exceptional demands and stresses to which authorised firearms officers are subjected to in the course of their duties, and … the exceptional difficulties of making time-sensitive judgments”—


are absolutely right, but I respectfully say that those are the very considerations that would be taken into account by the prosecution in the ordinary course of affairs when deciding whether there is sufficient evidence and deciding whether it is in the public interest to prosecute. This would put into the criminal law a presumption that does not have a satisfactory precedent and place officers in a particular position. I feel we must leave it to the prosecutors to take all these matters into account in deciding whether it is appropriate to prosecute.

I should perhaps declare an interest, in that I was a barrister who acted on behalf of the police in one of those few cases where an officer did, in fact, unfortunately, kill a suspected criminal. The case went all the way to the House of Lords. It is called Ashley v Chief Constable of Sussex Police. Ashley’s relatives were represented by Sir Keir Starmer, as he was not then, whose junior was the noble and learned Lord, Lord Hermer, as he was not then. The argument involved very much the same issues that we have discussed this evening about objective and subjective mistakes. A very junior officer, as part of the armed response unit, thought he had seen a sudden movement. He opened fire and unfortunately killed Mr Ashley. He was prosecuted for murder and acquitted, because it was a mistake. Civil proceedings followed in due course. It was difficult, but he clearly made a mistake and the jury had no difficulty in acquitting him.

That brings me to the amendment suggested by the noble Lord, Lord Carter. I understand what has been said over the years in relation to those matters, but they are very much taken into consideration by juries in any event. Self-defence would include all those matters, or the urgency of the situation. Although I will listen carefully to what the noble Baroness has to say, I am not at the moment convinced that we need to change the law.

I said that I do not like presumptions in the context of the criminal law. I do not like presumptions much anyway, which brings me to the amendments in the name of the noble Lord, Lord Pannick. What worries me about the presumption is: what rebuts that presumption? At the moment, the law provides that a judge decides in the particular circumstances whether it is appropriate to grant anonymity, and he or she will take into account all the factors, including the risk of danger to the officer if he or she is named, which is entirely proper. But this presumption would, I respectfully suggest, mean that the judge would be getting a very strong steer from Parliament that he should grant anonymity unless—and we do not really know what the “unless” is.

Granting anonymity runs contrary to the principle of open justice. Although one has considerable sympathy for any officer caught up in the situation, nobody is above the law, whether they are officers or not.

The press has a duty to report cases, particularly cases of this sort, where serious consequences have followed from the action of the state. We know that journalists are thinner on the ground than they once were and often have to cover different courts. I speak with some experience as the chairman of the press regulation body and knowing the pressures that journalists are under. They themselves often have to make representations to judges, in all sorts of circumstances, as to whether there should be an anonymity order or not. They might be faced with having to persuade a judge who has already been told that there is a presumption of anonymity. That is a hard burden to discharge for a journalist who may or may not have some legal representation. As a result, it seems to me almost inevitable that all officers will be granted anonymity.

If that is what Parliament thinks is appropriate, so be it, but let us not delude ourselves into thinking that presumption will mean anything other than automatic anonymity in these circumstances. I think this is a step that should not be taken. Although all these amendments concern a very real issue and concern, open justice and fairness to all seem to me to point to the result that the amendments from the noble Lord, Lord Pannick, should be accepted and the other amendments rejected.

[Lord Hogan-Howe (CB)]

Before the noble Lord sits down, could he just consider one thing? He made some very strong points. One thing that concerns the officers—although the noble Lord is quite right to identify that there have been relatively few criminal charges over the period—and the reason they are not persuaded by the CPS, or whoever is making the decision, taking into account only sufficiency of evidence and public interest, is that on every occasion the CPS has brought a criminal charge, the jury has disagreed with it. It leads you to wonder what led to that decision-making process, because all the points the noble Lord made about all that is considered do not survive the test of a jury when it arrives.

That is why there is this concern. I am with the noble Lord, Lord Faulks. Is this the perfect solution? I am not a lawyer and not in a position to judge whether it is the best solution, but it is why this question is raised so frequently—not because of the frequency of the cases but of how often they have been cleared in a very short time after all the careful consideration by very good lawyers who come to a completely different judgment from that offered by a jury.

[Lord Faulks (Non-Afl)]

The prosecuting authorities have decided in these cases, for whatever reason, that they think it appropriate to bring a prosecution, to bring the matter before a court where a jury determines what is right. We trust juries—I know that it is a contentious issue at the moment as to what extent we trust them and in what circumstances—but in cases of this sort juries will remain, whatever happens to the prospective reforms. It shows that juries are perfectly capable of taking into account all the pressures that face officers in the situation the noble Lord describes and they regularly do so.

I am content to leave it for the prosecution to decide whether there is a case. Of course, if, having heard the prosecution’s evidence, the judge decides that there is not a prima facie case, the case can stop at that stage. Then the matter comes before a jury, and the common sense of 12 citizens decides—almost inevitably, it seems, reflecting all the factors we have discussed—that in very rare circumstances would it be appropriate to convict an officer. Precisely as the noble Lord has said, these are rare circumstances; often, the officer has not discharged a gun in anger before—we are not talking about Los Angeles or New York—so I am content with the situation.

[Lord Paddick (Non-Afl)]

My Lords, I should declare an interest as a paid adviser to the Metropolitan Police, although I have not discussed this issue with the police.

I came this evening looking to support the amendment from the noble Lord, Lord Pannick, but a couple of things that he said have caused me some concern. One is about the principle of open justice—yes, it is important to maintain public confidence, and it requires open examination of the evidence, but in police shooting cases, I am not sure that it is a requirement to identify the individual officer concerned. Exactly what happened during the incident has to be heard in open court and openly reported, but not necessarily the identity of the officer at that stage.

The noble Lord also tried to say that firearms officers did not have a unique role, but they do in the use of lethal force. They discharge their weapons on the understanding that it is highly likely that if they do, somebody will die. They aim at the largest body mass and therefore a fatality is the most likely outcome. That is something that no other police officer who is unarmed, or prison officer, as the noble Lord mentioned, would have to face. Therefore, the role of a firearms officer is unique for those reasons.