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.