Crime and Courts Bill [HL]

Debate between Lord Goldsmith and Lord Marks of Henley-on-Thames

Monday 10th December 2012 Lords Chamber

[Lord Goldsmith]

My Lords, I want to speak to Amendment 116ZA and to refer to Amendment 116E, which stands in my name in this group. Both amendments touch on a similar point, although possibly from different perspectives. I note that my noble friend Lord Beecham and I have perhaps started in slightly different places on this part of the Bill, although maybe we are moving towards a middle position. As the House knows, I am one of those who has been more in the enthusiastic group who support the introduction of deferred prosecution agreements. I believe that they are capable of assisting enormously, in particular cases, in dealing with the problems with which we are faced in crime.

I am sorry that the Government have such a blinkered approach to where these deferred prosecution agreements can assist. What obviously lies behind my Amendment 116E is at least to enable other offences to be added to the list of those that are covered by deferred prosecution agreements without the need for further primary legislation. I have no illusions as to whether the Government will accept this amendment. I am grateful for the meeting to which my noble friend Lord Beecham has already referred and for the attention paid to what was said by a number of us in that meeting. I am also clear that the Government will not move, which is a shame.

Although my amendment deals with offences, the Minister will recall that not only I but others in this Chamber have been concerned also about the ambit of deferred prosecution agreements. It is not strictly speaking the subject of an amendment tonight but the question of reviewing this includes whether it can be reviewed not only to consider the efficacy of the system as it is being introduced but also whether its ambit is appropriate, both in terms of offences and, I repeat, in terms of individuals.

Perhaps I may say this to the noble Lord and, through him, to his ministerial colleagues and their officials: I believe that the Government are making a big mistake in not seeing the advantage of deferred prosecutions in other cases. In this House previously, in Committee, I referred to the benefits that I have seen, particularly in relation to drug offences. If you go to any Crown Court in the country—certainly, this was the case when I sat regularly there and I believe it is likely still to be the case—you will see case after case to do with drugs. It is either a drug offence, or an offence of petty theft, burglary, mugging or something of that sort to get money for drugs. It is hugely damaging to our society but we do not seem to be that good at finding solutions to it. I believe that the carrot and stick approach, which deferred prosecution agreements provide, is one way to deal with that.

I know that the Minister will not respond positively to that today and I know that he will not respond positively to my amendment. However, as my noble friend Lord Beecham said, I hope that there can be a clear commitment to review the operation. I ask the Minister to accept that that commitment should include looking at not just whether the system is working, as it is about to be enacted, but also whether it could be more broadly based in relation to offences or to individuals. If he cannot give that assurance, I, for one, would support—although this was not my position previously—my noble friend Lord Beecham’s amendment as a way of forcing that review.

[Lord Marks of Henley-on-Thames]

I shall speak briefly to both amendments. While I support in outline the idea that there should be a review, the amendment in the names of the noble Lords, Lord Beecham and Lord Rosser, does not include a provision for an extension of the schedule. It seems to me that a review should be part of a continuing process. I agree very much with the noble and learned Lord, Lord Goldsmith, that there is considerable potential for deferred prosecution agreements. I would expect a review to come out with a recommendation for extension, rather than for limitation, and certainly for continuation of the system unless it turns out to have been a failure, which is not the expectation that I have.

I also agree with the noble and learned Lord in his amendment. I think it is a shame that the range of offences is confined to financial and economic offences. I entirely understand the Government’s position that, at this stage, this is an exercise in putting a toe into the water in unfamiliar territory, and I accept that it is unfamiliar territory. However, the extension of the offences under paragraph 31 of the schedule is subject to the affirmative resolution procedure. For my part, I do not see a huge distinction between adding other financial and economic offences to the list of offences under that procedure and adding the other offences of which we spoke at the meeting and in the debate in Committee. Health and safety and environmental offences have been mentioned, and drug offences were mentioned by the noble and learned Lord, Lord Goldsmith.

We are in the middle of providing for what the Minister has called a rehabilitation revolution. I regard that as a useful phrase and a useful and beneficial concept. It seems to me that deferred prosecution agreements, with their potential for arrangements to be made to encourage future compliant behaviour, can be seen as part of that overall rehabilitation revolution. I know that my noble friend will not accept these amendments tonight, but I urge him to bear in mind, with those in his department in charge of these things, that a wider view can be taken of these agreements.

Crime and Courts Bill [HL]

Debate between Lord Goldsmith and Lord Marks of Henley-on-Thames

Tuesday 13th November 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,

“but may not be an individual”.

So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.

[Lord Goldsmith]

My Lords, I will speak to Amendment 44 standing in my name, but I want to speak to Amendment 23 as well. Before I do that, and so that I do not have to repeat this on later groupings, I want to repeat the declaration of interest that I made on 30 October at col. 575. I also want to repeat my belief that this is a very useful addition to what the noble Lord, Lord Marks, has described as the armoury for prosecutors and for law enforcement agents. I think that that is absolutely right. On 30 October, I explained how I had been thinking about this when I was in office and, indeed, I introduced at the other end of the scale of offending something that was equivalent: conditional cautions. I believe that this is worth while and I think that the former Solicitor-General, Sir Edward Garnier, deserves credit for having pushed this forward. I had the benefit of talking to him about this before these amendments came forward into this Bill. So I do support them in principle. The few amendments that I have put down are designed to try to make it as workable as possible, given that the principle is there—others may take a different view about the principle—and to make it as useful as possible.

There are some technical amendments but also one or two that relate to the scope of DPAs. I want to underline the fact that I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames, who has made this point. The important issue about a DPA is that it is not just punishment. It can become punishment, but it is about changing behaviour and about compliance. It is a carrot and stick approach.

On the point raised by Amendment 23 about whether this should be capable of being extended to individuals, I repeat what I told the Committee on the previous occasion, that it was actually in the context of individuals that I first saw the benefit of arrangements of this sort. The noble Lord, Lord Marks, has referred to drug offences, and he is quite right. I saw in operation in the United States deferred prosecution agreements being used as a powerful tool to change the behaviour of people who were drug offenders and who seemed incapable of holding down a job and therefore living a life beneficial to themselves, their family and the general public. This was achieved by the combination of a strong statement that if they did not comply in particular ways—taking drug tests regularly, staying clean, following the advice of probation officers or the equivalent—they would suffer serious imprisonment, and the inducement that if they did comply, not only would they not go to prison but they would not have a conviction either. That could be very important to them in terms of getting jobs in the future. On more than one occasion, I watched judges who were speaking on a very direct basis to offenders, reminding them of their obligations and saying, “This is what you have got to go through. This is how you have to comply if you want to get the benefit of this arrangement”. So I think that this is potentially very valuable for individuals, and I ask the Government to think again.

The noble Lord, Lord Phillips of Sudbury, is of course right about the technical issues on the amendment, but I think that the purpose behind it is very clear and, if the principle were accepted, I am sure that the Government would sort out the precise wording to make it work. I do not think that the noble Lord can change the amendment while on his feet.

In the same context, I turn to Amendment 44 in my name.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak to Amendments 24, 25, 26 and 27. That suite of amendments has one purpose which is to make a financial penalty compulsory as a requirement of a DPA.

I suggest that there is an anomaly in the Bill as drafted. There is no compulsion to agree a financial penalty. It is one of a series of optional requirements. However, if a DPA contains a financial penalty, that penalty has to be broadly comparable to the fine that a court would impose on a plea of guilty. Therefore, the DPA has to have either no financial penalty at all or a full financial penalty comparable to the penalty that would be imposed by a court. The reason why I suggest that a financial penalty should be compulsory is to maintain public confidence in the new system and to prevent DPAs being seen as a soft option. That is particularly important if they are to be used only for economic and financial crime by corporations rather than more widely. At the moment, if a DPA can be agreed between an offender and a prosecutor without being subjected to the penalty that a court would impose, the innovation runs the risk of being tainted by the allegation that it amounts to no more than plea bargaining, the sort of suggestion made by my noble friend Lord Phillips of Sudbury.

I entirely accept that there might have to be an exception allowed for cases of genuine inability to pay, either at the agreement stage or at the stage when a breach or possible variation is considered under paragraphs 9 and 10, or at both stages. Subject to that qualification, I suggest that a financial penalty comparable to a court fine in lieu of prosecution should be at the heart of the new arrangements. I beg to move.

[Lord Goldsmith]

My Lords, I will make some observations about the noble Lord’s amendments in this group. I shall speak also to Amendments 28 and 29 in my name. It is worth reminding ourselves what the requirements of a DPA may be, as set out in paragraph 5(3). We have spoken as if the only requirement is likely to be a financial penalty. We talked about paying the price and buying one’s way out of trouble. However, a number of requirements may be included, not just the payment of a financial penalty. The words “financial penalty” appear in paragraph 5(3)(a). Paragraph 5(3)(b) refers to a requirement,

“to compensate victims of the alleged offence”.

Paragraph 5(3)(c) refers to a requirement,

“to donate money to a charity or other third party”.

Paragraph 5(3)(d) refers to a requirement,

“to disgorge any profits made by P from the alleged offence”—

no doubt to the person from whom they have been made, not to the prosecutor.

Paragraph 5(3)(e) refers to a requirement,

“to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both”.

I wish to underline that that can be a very powerful tool for changing behaviour, but also an onerous tool. Frequently in cases where such a system exists, a monitor is required. The company then has to pay for an individual—the noble and learned Lord, Lord Woolf, was such a person—who will have full access to what it is doing and whose job it will be, from inside, to see that it is complying with the programme. That can be a very powerful tool for making sure that it changes its behaviour—but, as I said, also an onerous one.

Paragraph 5(3)(f) refers to a requirement,

“to co-operate in any investigation related to the alleged offence”,

and paragraph 5(3)(g) to a requirement,

“to pay any reasonable costs”.

I invite the Government to reconsider even their proposal, whether or not they accept the amendment of the noble Lord, Lord Marks. Possibly this is one of the more important amendments being considered tonight. I looked back at the Government’s response to the consultation on this offence. I noted from page 28 of the paper that more than half the respondents to the consultation did not agree that there should be a fixed minimum payment for a financial penalty. I wish to understand why, given that the majority of respondents took a different view, the Government have committed to this.

I am concerned about several things. First, if we impose this restriction, the DPA may be used in fewer cases, because it will become unattractive to agree to it. I recall that in a previous debate, in answer to a question from me, the noble Lord, Lord McNally, confirmed that the Government saw DPAs being used even in cases where the defendant did not admit guilt. In those circumstances, it becomes surreal to start talking about the financial penalty that would have been imposed on a defendant if they had pleaded guilty when they have not.

Secondly, the cost of the compliance programme—in terms not just of money but of obligation—can be sufficiently significant that it justifies saying, “No, you do not have to pay the same financial penalty”. I will also ask a question about financial penalties. That is why I read out the list. “Financial penalty” is only one requirement on it. I fear that by imposing this obligation, we may create a distorted view. For example, somebody may say: “What about the victims?” The answer may be: “I am afraid that I cannot afford to compensate them because you are making me pay a financial penalty which is commensurate with what I would have been fined, so there is no more money, or at least I am not giving you any more”. That is quite contrary to the principle in the criminal law that where financial measures are made, you treat the fine as the second thing, and if there is money for compensation, you try to get that paid first. I am concerned that this will have a counterintuitive and unsatisfactory effect.

I would avoid this sort of perverse incentive. I would avoid putting on the straitjacket. Of course I take the point about public confidence—although the more in this debate we invite the public not to have confidence, perhaps the more they will not have confidence. Perhaps we should start looking at this in a different way. My answer to this—as it was to the previous amendment—is that there is a double lock on a DPA in the form of the most senior prosecutors and the court. That is sufficient to ensure that what comes out of the DPA is satisfactory. I therefore do not support the amendment of the noble Lord, Lord Marks. My Amendment 28 is designed to have the effect that the financial penalty should not be more than the fine would have been, which is obviously perfectly reasonable.

Amendment 29 deals with a somewhat different but equally important point. It seeks to change the provision in sub-paragraph (5) that a,

“DPA may include a term setting out the consequences of a failure by P to comply with any of its terms”,

and convert it to an obligation not a permission. This is on the basis that the DPA should state what will happen to you if you do not meet its terms—that is what this is all about—in the interests of both the public and the person who is on the receiving end of the DPA. It is an amendment of a different order but I invite the Government to consider it.

Crime and Courts Bill [HL]

Debate between Lord Goldsmith and Lord Marks of Henley-on-Thames

Tuesday 30th October 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

It can be inferred from the fact that there is a proposal that the prosecuting authority has to go to a judge at the preliminary hearing to persuade the judge that the case is suitable for a DPA. If a prison sentence ought to be imposed on the person “P”, that agreement would not be forthcoming. That, I suggest, would be the effect of the proposal, although it may be necessary to make it clear by amendment; I appreciate that.

My second point is that the offences covered in Part 2 are economic and financial, and only financial and economic offences may be added to the list by delegated legislation. I wonder whether the restriction, not as to the legislation but as to the offences, is entirely justified. Environmental offences, for instance, seem appropriate. There are other random examples of offences contrary to regulation that might be suitable, such as offences against fishing regulations regarding net mesh sizes and permitted catches. Those may be examples, and there are many more. There are other regulatory provisions where DPAs might be appropriate. Perhaps it may be as well to let us see how DPAs work with the offences listed in the schedule at this point and then look to amend the legislation in the future. Certainly as a member of your Lordships’ Select Committee on Delegated Powers and Regulatory Reform, I see the difficulty of adding large numbers of offences to the list by delegated legislation, as the noble Lord, Lord Beecham, pointed out. However, I suspect that our early suspicions of DPAs will wane in practice and that they may become tools of wider use and greater utility than is now envisaged.

[Lord Goldsmith]

My Lords, first I want to declare an interest. As my noble friend Lord Beecham said, I had something to do with an earlier consideration of similar problems when my party was in Government and I was in office, and I want to say something about that in a moment. I also declare that I am currently a practising lawyer and that I and my firm get involved in the sort of cases that this may be concerned with. I have seen how these systems work in the United States and I have thought about them quite hard. I want to make it clear that broadly speaking I am in favour of the proposal for deferred prosecution agreements. However, I have some questions that I will come to, and I understand very well the point made by my noble friend about the timing of the proposals being brought forward.

Before I turn to the substance of what I want to say, I am a little confused at the moment about the procedure that is being followed. This may be because unfortunately I was detained from coming to the House when noble Lords were considering the previous group of amendments. I came in at the tail end to hear something that I am not quite sure I understood, about matters being discussed again on a future occasion. But unless I have misunderstood, I notice that the noble Lord, Lord McNally, has moved government Amendment 155ZB, which provides for the introduction of a schedule relating to deferred prosecution agreements. Without, as it were, dissent, we seem at least to have got the concept of a schedule into the Bill. Whether that means that the noble Lord is going to move the schedule as a complete schedule, I am not sure, but if he does, that gives rise to questions about whether there will be any real opportunity to debate or amend its provisions. I want to ask some questions about the detail, so I would be grateful if the noble Lord could explain the situation.

Justice and Security Bill [HL]

Debate between Lord Goldsmith and Lord Marks of Henley-on-Thames

Monday 23rd July 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I have been one of those persuaded by the Government of the need for Part 2 of this Bill: that there may indeed be cases in which the injustice of being unable to achieve a determination of the issues in the case outweighs the injustice inherent in having the case tried in part by closed material procedure.

In being so persuaded, however, I have been one of those who have been extremely reluctant to see such a departure from the principles that normally guide us in civil proceedings. That persuasion has been on the basis that closed material proceedings would be a last resort only and that the decision to hold such proceedings would be taken only on the basis that national security required certain material to be withheld from the public at large and from the excluded party or parties, despite the serious unfairness inherent in that procedure.

However, it would be fundamental that, except for the departures from ordinary procedural law inherent in the withholding of security-sensitive information, the proceedings before the judge would otherwise be ordinary civil proceedings. Moreover, the material before the judge, which he could consider in coming to his conclusion, would be evidence that he or she would ordinarily be able to hear and take into account in ordinary civil proceedings.

If that were not to be the case, and material that would be inadmissible in an ordinary case were to become admissible because the proceedings were held as a CMP, that would set them apart from the ordinary procedural law of the land and create an entirely new security court of a type that many in this House would find both alien and sinister. Furthermore, it would undermine the whole concept of the use of a CMP being a last resort, because the very fact of the CMP would give a party seeking to introduce evidence that would otherwise be inadmissible a litigation advantage. That would make the CMP procedure desirable in itself, irrespective of any considerations of national security. The CMP would then become a parallel and less fair procedure than ordinary civil proceedings in a way quite unintended by those of us who see the need for the Bill.

For those reasons, I support this simple amendment, which makes absolutely clear the position of the admissibility of material considered by the judge. I hope that the Minister will accept the amendment and reassure us on this important point in closing.

[Lord Goldsmith]

I start by apologising to the Committee that I have been unable to take part in the debate on the part of the Bill that I wanted to take part in—this part—due to other commitments. It would have given me the opportunity to say more than I will say now about how concerned I am about the departures from traditional ways of resolving disputes, which other noble Lords have referred to. All the amendments that have been moved deserve careful consideration by the Government, and I will underline why that should be so.

First, as soon as one moves to a different procedure for determining civil disputes, it is important that one makes sure that the safeguards for litigants are available. Whereas in ordinary civil litigation one may simply be able to reply on the general approach of the court to make sure that those safeguards are there, in this novel and as yet uncharted territory one does not know. That is why it seems right that the Government should carefully consider, as noble Lords’ amendments propose, the detailed procedural safeguards that should take place. That is all the more so—this is my second reason —because this is a one-sided procedure. In circumstances in which the Government determine that they wish to go down closed material procedures, these considerations apply all the more because the risk is that the Government see the advantage to them of this procedure rather than to the litigant.

Looking at the way in which the Bill would operate, I also think about how some of us might have to explain this procedure to colleagues in other countries. They will ask, “Is it true that England, a country that we thought had such strong safeguards for liberty, can now have procedures in which evidence is relied on by the state against an individual without that individual seeing it?”. I have spent a lot of time overseas and I will find that difficult to justify. I will find it all the more difficult to justify if—and this is why I support the amendment moved first by the noble Lord, Lord Hodgson of Astley Abbotts—I had to say, “And what is more, it is true that the judge made the decision for that procedure to apply without there even being a hearing as to whether it should”. I would find that very difficult indeed to justify.

Fixed-term Parliaments Bill

Debate between Lord Goldsmith and Lord Marks of Henley-on-Thames

Monday 18th July 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I do not accept that there is a parallel. There is indeed the exception in the Parliament Act for a Bill to extend the life of Parliament, and that was the case with this Bill, with the power to extend by two months. That is not the case in respect of these amendments.

[Lord Goldsmith]

My Lords, I have listened to the noble Lord and the noble Lord, Lord Rennard, and I must say that it seems to me that they are making an enormously unnecessary mountain out of this. What has happened is perfectly straightforward. Many parts of this House do not like this Bill, and for good reason. Your Lordships’ Constitution Committee, on which I have the privilege to sit, did not like it either. But in the way that this House often finds compromise solutions, instead of saying, “We won’t have the Bill at all”, the House said, “You can have your Bill. You want a fixed term this time around, but don’t force this down the throats of every successive Parliament. We will make it easy for you. We will not even require you to go through the full process, though you can if you want to”—I think the noble Lord, Lord Cormack, was at one stage proposing that, and I will come back to it. The House said, “We will leave it on the basis that if each House resolves that in its turn it wants a fixed-term Parliament, it can have one”.

That seems to me to be an eminently suitable compromise. What the noble Lords say, inter alia, is that this somehow gives this House the ability to prevent the Commons from having its way. But no; if the Commons wants to pass a Bill—a full Act—against the wishes of this House, it can still do that in the next Parliament. There is no constitutional aberration about this at all. It is a sensible compromise, it is a good British compromise, and it is the sort of compromise that this House is good at finding. I too hope that the noble Lord, Lord Butler, will divide the House. If he does, I will gladly join him in the Lobbies.

[Lord Marks of Henley-on-Thames]

Does the noble and learned Lord accept that the will of the House of Commons is that this Bill should pass in a way that does not last just for one Parliament, and that this Parliament does not need any legislation to sit until 2015?

[Lord Goldsmith]

I have two answers for the noble Lord. First, that is one of the reasons why this Bill has never been necessary. It would have been perfectly possible for the Prime Minster to have made it very clear—on his honour, on his commitment, or whatever— that he was not going to go to the country until later. That was undoubtedly one of the options which was available, as we know from the evidence that has been given. The reasons why it was not taken I do not find at all convincing. Nevertheless, that is the route by which the Government have gone. Secondly—I say this with respect to the noble Lord, who has not been here as long as some other noble Lords—this House has the obligation and the responsibility of saying to the other place, “We think you are wrong. Think again”, and from time to time of saying, “We think you are wrong and we are not going to support what you are trying to do”.