Policing and Crime Bill

Lord Judge Excerpts

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

[Lord Beith (LD)]

My Lords, I have great respect for both my noble friend Lord Paddick and the noble Lord, Lord Pannick. On this occasion, it is with the former, rather than the latter, that I agree, although one takes on either of them with a measure of reluctance and trepidation. I was partly struck to say something in this debate when the noble Lord, Lord Pannick, asserted that to impose obstacles to convicting the guilty is a very high cost. We actually pay this cost throughout our criminal justice system. It would be a lot easier to convict some people that we and the police think are guilty if we did not have to prove that they actually are, to the satisfaction of a jury, or if various procedures, such as disclosure, did not have to operate—the prosecution must disclose any evidence it comes across that might support the innocence of the accused. Many of these things make it more difficult to convict people, but they are part of the protection for the innocent and uphold the principle that someone has to be proven to have committed an offence.

Much of the argument about whether the kind of prohibition which my noble friend has advanced—and I agree this should be done—revolves around whether people who have had similar experiences of the accused will come forward. There are several points at which, if this clause were in operation, they would still be able to do so: between charge and trial or between the various stages of a trial process, for example between committal and trial. I am not an expert in this, but it appears that in most of the cases where this has happened it has been at that stage, rather than at the stage of initial accusation, except perhaps in some of the most notorious cases, which have been referred to this afternoon, where injustice has been done by publicity.

As the noble Lord, Lord Faulks, correctly pointed out, the proviso has to be precisely worded. The point of the proviso is that anonymity might be broken if the police and prosecuting authority consider that they would like to go to trial and the evidence is not quite strong enough for them to do so but there is some knowledge that it is likely that people will come forward. A case where there is substantial evidence that does not quite meet the Crown Prosecution Service’s normal criteria, yet there is reason to believe that there may be others, might be just the circumstances in which an earlier breach of anonymity would be justified.

The weakest point put forward by the noble Lord, Lord Pannick, was the one about gossip and speculation. The whole process is attended by the risk of these. If the name of an accused person cannot be disclosed prior to charge, there may be those who seek to gossip about it. That is something we should try to deal with in whatever way we can. But of course the same applies to the anonymity of the victim. Most of us have read newspaper stories which speculate and hint at who the victim might be in such a case. We cannot use that as a reason not to afford protection to the victim, and we should not use it as a reason not to afford protection to the accused at a stage in the process when it is unreasonable to visit a punishment more severe than applies in many other criminal offences, arising out of the publicity and shame and loss of office and other consequences that have attended some of the cases that we have heard about.

The noble Lord, Lord Pannick, produced several convincing examples of drafting that might be improved in this Bill, but that is what it was—the principle needs to be addressed, and it is not adequately satisfied by guidelines. Even though the better the guidelines the better the situation, guidelines fall short of the value of a firm principle enshrined in law, which the criminal justice system can itself uphold.

[Lord Judge (CB)]

My Lords, I introduce what I want to say by suggesting that we need to question certainties that anybody advances in this debate. I went to, was well informed by and was deeply sympathetic to, the meeting arranged by the noble Lord, Lord Paddick, where we heard the overwhelmingly poignant stories of Mr Gambaccini, Lady Brittan and Sir Cliff Richard, and I thought, “That’s a certainty, isn’t it?”. But then I remembered an experience that I had when I was a young member of the Bar, of a client in the Midlands arrested for murder. If he was arrested, it meant that there were reasonable grounds for suspicion—and there were. It was quite a notorious case, and the publicity given to his arrest meant that two people came forward who were quite unconnected with him and were able to establish an alibi for him. Another man was subsequently convicted for the murder, so this man was totally innocent. If those people had not come forward, he would have remained in custody pending trial. They might have come forward by trial, but he would have been in custody for many months before his trial began—and, if they had come forward then, the argument would have been, “How can they be so sure that they were together or they saw him in this particular place on this particular night?”.

So there are certainties both ways. I want to contribute to the debate by making two separate and additional points to the ones that have been discussed—perhaps one to meet a point raised in discussion. It is said that rape and sexual crime is particularly awful, and there is usually plenty of other evidence when other crimes are concerned. Well, with murder, the allegation that a mother has killed her children is not the kind of allegation that can be trivialised. There are cases in which mothers alleged to have killed their children have not done so. Noble Lords are all familiar with the phrase “cot death”, although it summarises a much more complex idea. There the question is whether the children were murdered at all, or whether they died from natural causes. It is a terrible allegation to have to face. Do we say, “Ah, well, it does not matter if they have publicity”?

Then there is terrorism. Half the time with terrorism, if the police did not act before the bomb went off, on the knowledge that they have, we would be blown up. So terrorist offences usually consist of conspiracies and offences contrary to various terrorism Acts which never came to fruition. The whole case depends on demonstrating that there was going to be a bomb, or whatever, and it never happened. We have to be careful about the sorts of cases that we are thinking about. I suspect that causing death by dangerous driving is a dreadfully serious allegation to the public mind—and certainly, if it is said to be accompanied by drink, of course it is a dreadfully serious allegation, because it is a dreadfully serious crime.

I ask noble Lords to pause. I understand that sexual crime now seems to be at the forefront of public concern, but let us not just dismiss those other crimes as really not so important, so we do not really need to preserve the anonymity of the accused for them because it does not really matter so much. We need to have a clear principle about this. I think that we should have a principle that either says yes or no to publicity or anonymity at various different stages. But I do not, I regret to say, share the view that sexual crimes should be treated as entirely one-off, on their own, and separate.

There is one more point that I want to add to the discussion. We are working on the basis that the points made by the noble Lord, Lord Pannick, are drafting points—I do not share the criticism made of him. But drafting points matter in this context. Let us pause to consider what arrest means, if we are saying that “don’t disclose anonymity” stands on arrest but, once the charge happens, the anonymity goes. Pitch the time where you like—arrest means that there are reasonable grounds for suspicion. It means that you are incarcerated; it means that you have lost your liberty and that, lawfully, you have lost your liberty, and that it is justified because there are reasonable grounds for suspicion. I have concerns about a blanket prohibition imposing silence on the media in circumstances where somebody’s liberty has been taken from him or her, even if for a short time. That is not how we work in this country. We do not want people locked up for any time at all without anybody being able to say so. Those are considerations that I suggest should be added to the thought that we give to the issues in this debate.

[Lord Lexden (Con)]

My Lords, much gratitude is due to the noble Lords, Lord Paddick and Lord Campbell-Savours, for introducing and seconding this amendment, drawing on their long experience of work and reflection in relation to a very important issue. I shall return briefly to a question that has come up naturally in the course of our discussion—the simple question of whether the presumption of innocence until proved guilty is still in practical, effective existence where allegations of sexual abuse are concerned. Last week’s Henriques report showed that during Operation Midland innocent people were treated as if they were guilty, even though there was no serious evidence against them. A recent detailed study by the Oxford University Centre for Criminology concluded that there has been a cultural shift towards believing allegations of abuse and the presumption is now in favour of believing those who present themselves as victims. The study documents in great detail the immense harm done to very large numbers of ordinary, innocent people who had unfounded allegations made against them. In any walk of life, a person whose name appears publicly in relation to a mere allegation of abuse can expect to suffer much hardship. This wholly unsatisfactory state of affairs extends from state to Church, from the living to the dead.

As I have mentioned on previous occasions in your Lordships’ House, grave damage has been inflicted on the reputation of one of the greatest 20th century bishops of the Church of England, George Bell, after a completely secret and internal investigation of a single, uncorroborated complaint, made many decades after his death. At least the injustice done as a result of Operation Midland has been the subject of a thorough authoritative inquiry. In June, the Church announced an independent review of the case involving Bishop Bell. Four and a half months later, we still await the name of the review’s chairman and his or her terms of reference. There is no right reverend Prelate in the Chamber at the moment but I hope that these comments will be noted by the Lords Spiritual.

The authorities of Church as well as state must recognise that we need not just to halt but to reverse the trend that has eroded the presumption of innocence. We need another cultural shift, a decisive, morally responsible one that will stop the ruin of innocent lives and reputations. This amendment, I believe, would help us to achieve that shift.

Policing and Crime Bill

Lord Judge Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the issues raised by these amendments are extremely difficult. First, in view of all that has been said, it is difficult to distinguish, from this aspect, between sexual offences and other offences. There is much to be said for the view that if pre-charge publicity is to be outlawed, it should be so for all offences.

My second point relates to the safeguard, embodied in the amendment tabled by my noble friend Lord Marlesford and the noble Lord, Lord Campbell-Savours, of application to a magistrates’ court for an order. I think I am right in saying that in respect of both Lord Bramall and Sir Cliff Richard there must have been a warrant to search their homes. A warrant of that kind must have been based on some sort of evidence that was accepted by, I assume, a magistrate. There is, therefore, a question about whether it is a sufficient safeguard for a magistrate to give the order. As the noble Lord, Lord Pannick, has said, if a judge has said that there is enough to go forward, there is a slight difficulty in the clear way to a trial because a judge has already come to some point of view. However, that point of view is not that the accused is guilty; it is that there is sufficient difficulty in the evidence that in that judge’s judgment it would be right, in the interest of justice to all parties, for publicity to be allowed. There is a lot to be said for the view that publicity, up to the moment of charge, should not generally be allowed for sexual offences or others.

I have not found it easy to come to a conclusion about this and I have thought about it a fair amount. I have come to the conclusion that Amendment 182 is better but I would like to see a possible modification, in the light of what I have said, of the responsibility for allowing the matter. As I said, I think there were magistrates’ warrants for search in the two cases I mentioned: they turned out not to be particularly satisfactory.

[Lord Judge (CB)]

My Lords, I have been quoted on both sides, so I want to say something for myself. The most shocking aspect, to me, of the issues we are discussing was the BBC helicopter flying overhead while Sir Cliff Richard’s home was searched. There are many different aspects. Many of your Lordships have spoken today of your concerns about individuals you have known or individuals about whom you have known, who have been, in effect, traduced and brought low by publicity in the way in which we have been discussing. I do not support any such publicity, but I respectfully wonder whether we are addressing the wrong remedy in the wrong Act. For example, what is there to prevent a simple Act of Parliament that makes it a criminal offence for a police officer to disclose the name of any individual who is suspected of a crime, before he has been arrested? It should not be too difficult.

I do not want to repeat what I said last time, but the problem I invite noble Lords to consider is this. An arrest has to be justified. An arrest that is not based on reasonable grounds for suspicion is unlawful. Notice that I pick the moment of arrest—I am not talking about the allegation or the police officer telephoning the local press to say, “We are about to arrest the local schoolmaster”, or whatever it may be; nor am I addressing the issue in the context of sexual offences. The same story should apply to all offences.

An arrest must be lawful. Please can we bear in mind what the consequences of a lawful arrest are? You are detained. You are removed from your home, if that is where you are on arrest, or the street, the town or the city, or your office, or even when you are out having a drink with your friends. You are removed and you are not a volunteer: you have to go. If you resist arrest, you are committing an offence, and down to the police station you go, if that is where they take you. But you are completely in the hands of the arresting officer, and you go through a process. You remain detained, either while further investigations are made or until such time as further evidence emerges or it is decided that, after all, you can be allowed to go, for now, on bail. This is a process that nobody goes into voluntarily. Please can we remember that it is the first stage in the operation of the criminal justice process—and often, of course, culminates in a trial, conviction and sentence.

My concern about both these amendments is that they fail to address the problem that arrest is part of the criminal justice process. If they are adopted or if either one is adopted, we end up not with a situation that is incommunicado, if I may say so to the noble Lord, Lord Paddick. We end up with a veil being drawn against any reporting of the fact that one of our fellow citizens has been arrested. I find that troublesome.

The idea of criminal justice being secret is abhorrent to all of us in this country; we do not want formal trials to be conducted in secret. This part of the process, I suggest, should not be seen as a private matter. The exercise of the power to arrest and the consequences of it are public matters. There are many hard cases we have heard about and there has been much abuse of the process, but these issues should be addressed in a different form of legislation.

[Baroness Butler-Sloss (CB)]

My Lords, I have been listening with a great deal of care to all that has been said. I have no doubt that Amendment 182 does not go quite far enough, in the sense that if there is to be the intervention of legal process before a court, it needs to be by a judge and not a magistrate. I am in the extremely unusual position of not knowing which way I am likely to vote. I find it very difficult. I am very attracted by what the noble and learned Lord, Lord Mackay of Clashfern, says: that prior to charge, no one who is being investigated should have the information disclosed. But I do think that one has to point out—as, indeed, the noble Lord, Lord Campbell-Savours, and other noble Lords pointed out—that sexual offences, particularly with celebrities, are a special case that sells newspapers. In one of the magistrates’ courts where I used to prosecute and defend as a very young barrister, the custody officer told me that it was £25 for the information to be provided. So one knows about it, and the police have, indeed, been criticised.

I happen to know someone prominent in a particular career—I will not say which—who is about to be charged with an offence committed at the age of 13 against a girl of seven. Everybody locally knows about it. For him, that is quite as awful as it would have been for Lord Bramall or Lord Brittan, save for the fact that this man is not likely to be dying. But this very personal thing—it may or may not be true—of someone in their forties or fifties accused of what he did at the age of 13, which has suddenly come out in relation to a girl of seven, is a shock.

The question that I pose to the Minister is this. If we do not do anything by way of legislation, what can we do to protect those who are innocent and have been vilified, and those who may be innocent, and the presumption of innocence, as the noble Lord, Lord Pannick, has rightly pointed out, is there but is totally ignored by the media, and consequently largely ignored by the public? The approach that “there is no smoke without fire” is attractive, and if the press say something—well, it may be true. If we do not do anything, how do we stop an injustice? With huge hesitation, therefore, I am likely to support the argument of the noble and learned Lord, Lord Mackay of Clashfern, rather than my very close friend, the noble and learned Lord, Lord Judge.