Policing and Crime Bill

Debate between Lord Faulks and Lord Paddick

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Paddick]

My Lords, I am very grateful to the Minister and to all noble Lords who have participated in this debate. I am particularly grateful to the noble Lord, Lord Campbell-Savours, for supporting this amendment.

I have to make it clear to the noble Earl, Lord Attlee, that this amendment is not an attack on the Metropolitan Police. It operates in what some might find a very strange way but there are reasons the commissioner is distanced from the operational decisions made by his officers, although I will not go into them now. The police have always had the problem that when things go wrong they are held back from apologising by their own lawyers, for reasons which will be apparent to the lawyers in the Chamber.

On what the noble Lord, Lord Pannick, said, I agree with my noble friends that these are drafting issues. I said that the reason for this amendment was to allow a debate. The wording is actually a copy and paste of the protections provided to the victims of sexual offences; no doubt many of the noble Lord’s criticisms could therefore be directed at the current legislation. I will not go over what he said as criticisms have been made by other noble Lords and I do not want to carry on in that vein.

I am grateful to the noble Viscount, Lord Hailsham, for saying that, in principle, he felt this was correct. It is interesting that he said that the unauthorised disclosure of information by police officers should be addressed, particularly in light of the fact that the Government want to put a stop to part two of the Leveson inquiry, which is supposed to look at the relationship between the police and the press. The Government seem determined not to allow it to go ahead so maybe we should sidestep it and include this issue in the amendment, which we will no doubt return to on Report.

In response to the noble Lord, Lord Faulks, I gave an exact example of an exceptional circumstance where such an exemption might take place and I do not want to detain the Committee by repeating it. However, perhaps “in the interests of justice” might be a better phrase to use than “in the public interest”.

[Lord Faulks]

I am grateful to the noble Lord for giving way. Perhaps he could help the Committee with this: the amendment would change the moment when anonymity is lost from arrest to charge. As the decision an officer takes about whether to charge is a very difficult one, does the noble Lord not think that there might be a temptation on the part of the police to charge rather earlier than they should—or at all—because then anonymity would be lost and they might be able to get more evidence? That would be a distortion of proper police practice.

[Lord Paddick]

I am quite surprised that that argument is being put forward. The noble Lord will know that in serious cases such as sexual offences the police cannot charge on their own account but have to have the agreement of the Crown Prosecution Service. I am sure that the noble Lord is not suggesting that the Crown Prosecution Service would be tempted to charge somebody in the absence of available evidence—the police would argue that the contrary is the case.

I take my life in my hands in addressing the comments of the noble and learned Lord, Lord Judge. In answer to his question, yes, it is important, and my noble friend Lord Marks has come up with the solution of including in the amendment the proposal that the identity of the accused should not be put into the public domain without his consent. That would cover the example that the noble and learned Lord gave of alibi witnesses being sought.

We are not saying that sexual offences are more serious than murder or terrorism. We are saying that there are many sexual offences and that particularly when it comes to historic offences there are questions of consent—perhaps—or there is no evidence at all and it is one person’s word against the other. That is not the case with murder or terrorism. Even when there is conspiracy to commit a terrorist act, evidence is gathered, whether, for example, from emails or through security services bugging rooms in which these people are operating. For those offences, there is some tangible evidence and that is what makes sexual offences different in a real sense. That is not to say that they are more serious—they might be so in terms of the reputational damage done to the individuals concerned but not in terms of the offence.

As a police officer who exercised the power of arrest on hundreds of occasions, I am not as confident that the level of reasonable cause to suspect that leads the police to arrest somebody is as high as the noble and learned Lord suggested. Yes, liberty is taken away, and somebody should not be deprived of their liberty without anybody knowing about it. However, if we put it into the amendment that the identity of the person should not be released without their consent, that issue would be addressed. Presumably it could also be given by the lawyer in particular circumstances.

I am very interested in what the noble Lord, Lord Lexden, said about the presumption of innocence and what he referred to as a cultural shift away from it. Everybody agrees that the presumption of innocence is at the heart of our criminal justice system, but, in practice, it is not being reflected in the minds of the public or the editors of certain newspapers. We have to deal with that reality and not some theoretical construct, and regrettably that is where we are going as far as the presumption of innocence is concerned in the minds of many members of the public.

The noble Lord, Lord Rosser, cited Stuart Hall as an example of a case in which more people came forward as a result of an arrest, but Stuart Hall was arrested and charged on the same day. In the case of Jimmy Savile, people did come forward to the police and were not believed; that was not because he was given anonymity but because there was something fundamentally wrong with the culture of the police at the time and they did not believe vulnerable victims. That is the issue that needs to be addressed.

We also have to ask ourselves about publicising cases which inevitably collapse. What impact does that have on victims of sexual offences who may be afraid that their genuine concerns will also result in a collapsed case? That is no doubt what is happening at the moment with the man who made these allegations and is known only as Nick. I am sure there are tabloid newspapers trying to identify that individual in order to give him negative publicity.

In response to the Minister, this is a difficult and sensitive issue. It is a question of balance and we have heard from noble Lords who have spoken in the debate that the majority feel that it is not right at the present time. The noble Baroness said that legislation is not the way forward at this time, but times have changed, as the noble Lord, Lord Lexden, said. People’s attitude towards those accused of sexual offences has changed so we need to look at this again, which is why I have brought forward the amendment and why we are having this discussion.

As I said in my opening remarks, everything needs to be done to encourage any victim of a sexual offence to come forward and report it to the police. Systems need to be in place within policing so that if allegations are made in different parts of the country against a long-distance lorry driver, for example, they are then matched up in order to reinforce the situation. But in saying that the College of Policing is doing a review when guidance is already in place which says that the presumption should be against identifying the accused, how on earth does that square, for example, with the way Sir Cliff Richard was treated by South Yorkshire Police? How does that follow College of Policing guidance, and how is a review of that guidance going to change police practice in the future?

On guidance to editors or the code of practice for the press, I have to question whether the noble Baroness reads the press and the attitude taken by its members and how a coach and horses is driven through the guidance to editors on an almost daily basis. This is why guidance is proven not to work. In marginal cases there may be some loss in terms of people not coming forward after someone has been arrested if no publicity is given, but people come forward predominantly when someone is charged and there is some certainty that a court case will happen, not at the point of arrest. That is why we will return to this on Report, but at this stage I beg leave to withdraw the amendment.