Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Macdonald of River Glaven Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, as my noble friend Lady Linklater said a few minutes ago, this has been a fascinating debate, and it is a great privilege to speak in it. I listened with particular interest to the speeches of my noble friend Lord Phillips of Sudbury and of the noble Baroness, Lady Kennedy of The Shaws. I found myself agreeing with every single word that they uttered.

It is clear that the legal aid bill is high, but it is equally clear that Part 1 of the Bill, if it passes into law, will narrow access to justice. That is a quite inevitable consequence and in that sense it is surely a retreat. It is all the more essential then that the areas where access will be narrowed are carefully chosen and the most vulnerable, we would hope, protected. It seems that many noble Lords on all sides of the House feel that these important aims may not yet have been entirely achieved by the Bill so that if Part 1 passes into law unrevised, the pain will, on the contrary, fall disproportionately on the weakest and the most vulnerable. That cannot be the Government’s intention.

I want to address the question of domestic violence, which has already been spoken to by a number of noble Lords. When I was chief prosecutor some years ago, I saw the extent of the scourge of domestic violence, its impact on those who suffered it, who were mainly women, and its impact on the children, who usually witnessed it, many of whom would enter their own chaotic cycles later in life. We did a great deal of work with the police and other agencies to try to improve the response of criminal justice to crimes of violence committed against women and children in the home. The first lesson we learnt doing this work was that it is impossible to predict the responses of people who are suffering that sort of crime. They do not respond in a way that you can always predict. Sometimes their responses appear to be entirely out of kilter with what is happening to them. One thinks of women returning again and again to abusive partners. This first lesson which we learnt appears to have been forgotten by the drafters of this Bill, who completely fail to understand that the responses of people who are being beaten and abused by their partners will not fit into the sort of narrow tramlines that serve as a gateway to legal aid under Part 1. An inevitable consequence of the Bill’s approach to domestic violence is that more people—again, mainly women and children—will be trapped in more abusive relationships with no succour at all from our law. I venture to suggest to noble Lords that that is a situation that would bring shame upon our entire legal system.

It surely at the very least must make sense for the definition of domestic violence in the Bill to be the same as the tried and tested ACPO definition that has been used by the police and the Crown Prosecution Service and well understood by the courts for many years. It is a matter of very great regret that the definition of domestic violence in the Bill is narrower and, I have to assume, deliberately narrower than the definition used by ACPO and the CPS. I ask the Government to think very carefully about whether it is appropriate to have a narrow definition of domestic violence in the Bill so that fewer women who are victims of it will have access to the law and to the protection of the law, as will their children.

I want to address one other issue in the Bill because it seems to be another illustration of the application of the law of unintended consequences as it applies to the Bill. Clause 12(1) concerns criminal legal aid in the context of advice and assistance for individuals in police custody. The right of a prisoner to consult a solicitor in a police station is a fundamental protection. It has been described by the Court of Appeal as,

“one of the most important and fundamental rights of a citizen”.

The United Kingdom Supreme Court has endorsed this view saying that,

“on arrival at a police station, the detainee must be advised about his right to free legal advice”.

However, the provision of legal advice in police stations is not simply a protection for detainees; it is also a protection for the police. This was very well understood by Parliament when it passed the Police and Criminal Evidence Act into law under a Conservative Government in 1984. This legislation followed notorious police abuses in the 1970s and early 1980s, when mistreatment in police stations was common and confessions were regularly fabricated. One notable and inevitable effect of this misconduct was the growing unwillingness of juries to convict defendants on the strength of police evidence alone and widespread cynicism among them about confession evidence generally. This cynicism certainly meant that some guilty people escaped justice, adding insult to the injury of their victims.

It was in response to this that the Police and Criminal Evidence Act enshrined the right to legal advice in police stations into our law. The effect of this long-overdue reform was immediate and entirely beneficial. Of course it helped fundamentally to regulate conduct in police stations—and that was a good thing—but it also protected the police because it gave honest officers, the overwhelming majority, protection from malicious allegations of abuse. The universal availability of free legal advice in custody suites throughout England and Wales has improved beyond measure the quality of criminal justice and, along with tape-recorded interviews, improved the standard of prosecution evidence to the general benefit of the public.

Of course, a critical aspect of this legal advice was that it was readily available and free. This meant that its provision was swift, it was certain, and it did not tend to disrupt the flow of an investigation with additional layers of scrutiny and paperwork. However, Clause 12(1) raises the spectre of this all changing in the future, and changing for the worse, because it indicates the possible future introduction of means-testing before police station advice may be available. Leaving aside the extent to which the cost of administering means-testing often seems to outweigh any financial benefit occasioned by its introduction, it is very difficult to conceive of any environment less suited to its always rather clumsy operation.

We are talking about busy police stations, in the early stages of an investigation, possibly when the need to interview a suspect is urgent. However, if he wants legal advice, he cannot be interviewed until he has received that advice—after all, if he remains silent, that could be held against him at a trial. Are we really to say that no interview is going to take place before a means test is considered, no charge may be preferred until the financial forms are filled out and passed—mortgage payments, rents, wage slips, debts, assets and all the rest of it? It is—I choose my words carefully—a foolish notion. Who is going to calculate the cost of this in wasted time and disruption to the forensic process? How will any hoped-for benefit possibly compensate us for yet more bureaucracy in police stations at a time when we are supposed to be doing all we can to reduce it?

The truth is that suspects in police stations need legal advice and it is equally in the interests of the police that they should have it. It is certainly in the wider public interest too because appropriate and legally compliant behaviour in our police stations is the starting point for a fair and decent justice system worthy of public confidence. We would tamper with this gateway at our peril.