Crime and Courts Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the right reverend Prelate the Bishop of Birmingham found himself down to speak both here and in the Grand Committee. Notwithstanding his character as a Lord Spiritual, he did not feel that was possible and he also felt that he had more to contribute in the debate in the Grand Committee. I therefore have to fill his place in the sense of taking it, although not in the sense that he would have fulfilled it at as a Lord Spiritual. I also wish to take this opportunity to express my gratitude for the work of the noble Lord, Lord Bach, as a Minister in the Department of Justice and also as a spokesman on legal matters in Opposition. I very much appreciated his support and help and all kinds of particular qualities that he had. I am delighted his place has been taken by the noble Lord, Lord Beecham, with his great experience as a member of the legal profession, making him well able to understand the problems that beset it.

I intend to single out one or two items. Immediately after me the noble Baroness, Lady Jay of Paddington, who convened the Constitution Committee with its very detailed consideration of judicial appointments, will speak. I do not, therefore, intend to get too deeply involved in that position. The noble Baroness will no doubt raise questions about some aspects of the recommendations which do not seem to have been fully reflected in this Bill so far. I want to start by talking briefly about the television provision in Section 22. This is not a new problem and during my term of office it became a very important issue. At that time the noble and learned Lord, Lord Hope of Craighead, who was then the Lord President of the Court of Session in Scotland, issued a practice note as a result of which the television authorities took a great interest in televising a number of cases in Scotland—something of the order of eight altogether. It was pretty obvious to me that they were interested in setting that up in places other than Scotland and in due course that interest was manifested in that they prepared a video with a considerable selection of television films of the courts in Scotland which was presented to senior members of the profession in England. It may be that the noble and learned Lords, Lord Woolf and Lord Lloyd of Berwick, will remember this. In any case, the result of these presentations was that the English profession was not encouraged to go down this road. There had never been a statutory prohibition in Scotland, although the courts were pretty cautious about it and, as I say, while the position opened up a bit at the time, it did not continue. However, noble Lords may have seen on television recently the sentencing remarks in a murder trial made by a Scottish judge who, following the territorial method of description, is called Lord Bracadale, after a most beautiful part of the Isle of Skye. I think that his remarks were broadcast widely and attracted a good deal of positive attention.

The Government proposals aim to open up the courts to television on the basis of orders made by the Lord Chancellor with the approval of the Lord Chief Justice. I would suggest that, in the vast majority of cases, the arguments and the decisions of the Court of Appeal will not attract the immediate interest of our public, whereas sentencing remarks will attract great interest. One has only to look at the print and other media to see that sentencing has a much bigger impact than arguments in the Court of Appeal. Occasionally, of course, a judgment from the Court of Appeal, particularly if it surprises the media, is given a good deal of attention, but I would venture that it would be wise to bring forward arrangements for broadcasting under the proper conditions appropriate to sentencing remarks instead of leaving them, as it were, to the end, which I gather from what I have seen so far is the suggestion.

The other matter I want to mention briefly in connection with television is that the exposure of the Houses of Parliament to television does not seem to have promoted a tremendous increase in the avidity with which the public enter into politics. I do not know the reason for that, although I could guess, and some noble Lords may have the advantage of me in that.

The next matter I want to mention is one that the Constitution Committee has certainly considered, and on this occasion I am going into its area to raise the issue of diversity. I believe that it is extremely important that there should be a sufficient amount of diversity within the judiciary as a whole to make it look reasonably fair in terms of job opportunities for all sorts of duly qualified people in the community. I think it is fundamental not to go down the road that people must be tried by those who belong to the same community as them; that would be completely inimical to justice. On the other hand, diversity in the sense in which I define it is highly desirable, and I believe that progress has been made. The statutory recommendation is that where two candidates are of equal merit, the consideration of diversity should be allowed to prevail. The occasions on which two candidates are of absolutely equal merit are likely to be fairly scarce, but the emphasis put on diversity in this statutory provision, although it may not strictly apply all that often, will help those who have to make these decisions to give effect to it as a desirable aim. Therefore, this is to be welcomed. I agree that it will not happen simply by legislation; a good deal of work is required. Of course, we are told that the new system is transparent—I am not sure what is meant by that because I certainly do not know exactly who is on the committees and so on—and transparency is a great thing: you are able to see through it in a way that you could not do when it was done by the Lord Chancellor on his own. The system has created a degree of breadth which the Lord Chancellor alone could never have attained.

There are one or two other matters I want to mention. In the clauses dealing with judicial appointments, paragraph 4 talks about a “non-legally-qualified” member, which might be a little ambiguous. Of course, it goes on to define it by saying that if you hold or have held certain judicial appointments that disqualify you for the House of Commons, you are not non-legally-qualified, and if you have ever practised or been qualified as a lawyer, you are not non-legally-qualified. This helps to emphasise the distinction between lawyers and judges that some lawyers are keen to make. I do not intend to pursue that, but later in the schedule you find that the Lord Chancellor can define a lay person by order after consulting the Lord Chief Justice. What is the difference between a lay person and a non-legally-qualified person, if any, for the purposes of this appointment?

That is rather an aside. I notice that the Lord Chancellor is to take responsibility for a good number of civil appointments. There may be a question over whether it is any longer appropriate to call him the head of criminal justice—I think he should be the “head of justice”, and have thought that for a while.

The other matter I want to mention briefly is the family court. As the noble and learned Baroness, Lady Butler-Sloss, has said, this has been some time in coming. It was very much opposed in the 1980s, as I recollect, and when I was asked to create legislation in connection with the Children Bill, it seemed an opportunity to get something done in this area and get it past the Treasury, which was the obstacle in earlier times. At that time, the noble and learned Baroness, Lady Butler-Sloss, had just produced her report on the situation in the north-east, which in effect recommended a family court. Of course, I could not go the length of having what we have now in this Bill, but by amendments introduced by the Children Act I was able to create a system in which all the levels were available for family justice. This Bill does it in a different way. Apparently mine was good enough to last for 33 years or so—I hope that this one will last for much longer.

Finally, I think the proposals for the county court are to do with questions of jurisdiction. The question I ask is: in what sense is this universal court for the whole of England a county court? There are a lot of counties in England.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I wish to address a number of proposals but I start by saying that I heartily agree with noble Lords who have spoken about the importance of our seeking to find alternatives to prison. The increase in prison numbers is horrifying. In this period of increasing youth unemployment, it is alarming to think of the risk of young people offending in greater numbers. More and more of them may find themselves in prison, their lives ruined. That should be a source of great concern to us all. Therefore, I hope that this time we will pursue alternatives to prison with seriousness and I hope that I shall be able to vote in support of such changes.

I want to speak, first, about the creation of the new National Crime Agency to deal with serious crime. I know that there are concerns about this reform and I have reservations myself, but in general I am convinced that globalisation is presenting us with such serious challenges to our national responses to crime that we should be willing to re-examine our present arrangements and be prepared to consider reform.

The very developments that make legitimate markets work—the ease of travel, the electronic transfer of money, the internet and the mobile phone—are all just as effective in developing black markets. In my work in the courts, I see at close quarters the trade in drugs and firearms, the trade in human beings for labour or sexual exploitation, the trade in human organs, which has been all over the newspapers today, and—I was involved in such a case last year—even the trade in babies. Such high-level crime, whether it is terrorism or just traditional organised crime, involves high rewards for the criminals—the money involved is huge. In years to come, we will undoubtedly see an increase in cybercrime.

For the most part, this sort of crime is very difficult to police but it affects all our lives, with greater quantities of drugs on the streets, an increase in gun crime and a pernicious growth in the sex industry. Policing these activities requires high levels of expertise and collaboration. I saw that first hand last year when I chaired an inquiry in Scotland into human trafficking. What became very clear to me was how necessary it is to have real collaboration and systemic responses to this kind of organised crime. Human trafficking, for example, often falls foul of agencies not knowing who takes the lead. It is a crime and so should be led by the police. It should not be fudged as something that might receive an initial investigation by the border agency.

Therefore, I welcome the possibility of a more focused and strategic response, particularly to human trafficking, but to other areas of crime too. However, there are problems. If you increase the centralisation of policing of serious crime in this way, there has to be much stronger oversight than there currently seems to be in the Bill. I am also very concerned that the freedom of information exemption will be continued here and I think that that should be revisited. It is important that the public know about the workings of such an agency when it is going to interfere in the privacy of so many lives.

I turn to the subject of court reforms. I welcome the idea of demystifying the courts and have written about it for years—ever since the late 1970s. It is important that the public know what goes on in courts. I remember that in the 1980s the drama series “Crown Court” did much to awaken public understanding of the processes and the issues that arose. I have no argument with the plan to televise the hearing of appeals in the Supreme Court or the Court of Appeal so that the public can watch and listen to the arguments being presented and understand why the judges make certain decisions. However, let us be very clear that that is not what the television companies are interested in. They are interested in new products and new ways of giving us pictures. They are interested in new titillation from “Big Brother” to “X Factor”.

We know what interests most television companies and I am afraid that some of it feeds the less attractive aspects of the human condition. The television companies want criminals. They do not want to watch judges giving judgments in the commercial courts. They want criminals; they want murder and mayhem; they want rape and carnage; and they want pretty victims and nasty, thuggish offenders. They also want celebrities being dragged before the courts. This is not about transparency; it is about voyeurism. Although it may be starting in a small way, I have great concerns about where this is going to lead. Basically, television companies—I have heard it being discussed—want criminal cases and they want to be in the courtroom. Reporting criminal cases is currently very disappointing for television newsmen. Where are the pictures? That is one of the questions that television people always ask. They do not like talking heads. Talking heads are a bore and that is why it is very difficult to cover trials. You get only snatched shots of witnesses leaving the Old Bailey or those cartoon-like drawings of defendants in the dock that look nothing like the people concerned. I can tell your Lordships that—I have represented them. Sometimes I appear in those drawings.

The television companies are desperate to get into the courtroom. It will start with just having the judge giving judgment, but they are not interested in the men in wigs waxing long and impenetrably about law. That is not what they want to see. They want the sensational, the salacious and the grotesque. So I am afraid that this is one of those rare occasions when I am going to disagree with our former Lord Chancellor, the noble and learned Lord, Lord Mackay, because I do not think that this is a healthy development. I hope that there is no rush to cover judges reading out their sentencing remarks. Letting television cameras into courts carries serious risks and, although this is starting at a low level with the higher courts, the potential for drift is huge and the consequences for justice are very serious.

Perhaps I may explain that the camera does not replicate the public gallery. People say, “But this is just making the public gallery bigger”. It is not. The camera chooses what to look at. It edits as it chooses. Indeed, at the moment the camera is looking at me. It is not looking at the responses of other noble Lords to what I am saying. If you sit in the public gallery of a court, you take in not just what the witness says but what the judge says and you watch the defendant’s responses and other things that happen in the courtroom. That tells you much more than you will ever know from watching snatches of the proceedings on television, and snatches are what they will be. Some states in the United States had to introduce something called gavel-to-gavel coverage because lawyers and people concerned with justice complained that, if you did not show the whole process, people would think that they had seen the trial but they would not understand whole areas of evidence that were never placed before the public. Unfortunately, “News at Ten” will not be interested in putting it all in front of you; it will put in front of you what is most dramatic. The public will think that they have seen the trial because they will have seen bits of it and then they will think that the jury got it all wrong. That will undermine confidence in the system.

Of course, we now have other forms of technology. Once shown on television, cases will be uploaded on YouTube and downloaded on to people’s phones. We will have people playing and replaying cases. Do you think that jurors are going to resist that when we do not have juries staying in hotels as they do in America? Of course juries are reminded not to look at these things, but do you really think that they will not? Do you think that they will not do it in the company of their families at home, so that there is then another jury deciding what it thinks of the evidence? The risks are horrifying. I think that new technology will make it impossible to have a fair trial and, in the end, that will mean that the whole question of jury trial is put in jeopardy.

There is also an issue for judges. In this country, judges enjoy a level of anonymity and unrecognisability. However, that will be lost. You can be sure that comment will be made about the sentences not being strong enough or tough enough. Then judges will be vilified and criticised and they will start to become defensive because they will know that the cameras will keep coming back to their particular court. When Cherie Booth—the wife of a former Prime Minister—sits, will people want the cameras to be in court to see whether her judgments come up to snuff? These may look like advances and transparency to all of you, but I am afraid that it looks like a very serious challenge to justice to me.

I welcome the efforts on diversity. All my professional life I have been arguing about the need for more women in the courts and on the Bench, but I am concerned about a number of things. I am concerned that the issue of merit is not examined in the Bill. I would like to see a new statutory merit test because merit is not a value-free zone; it is an area where many of the judgments that are made are made from a very narrow perspective. As the Chief Justice of Canada has reminded us,

“human beings have a tendency to see merit only in those who exhibit the same qualities that they possess”.

I am afraid that in the recent appointments of two men to the Supreme Court—there is still only one woman in that court—25 consultees were asked for their views and 24 of them were men. The outcome is affected if the gatekeepers are all from one perspective. Currently the emphasis is on one relentlessly individualised understanding of merit and it is too narrow. Instead, the collective competence of the court should be a central feature of appointment, allowing for the correction of deficits in terms of diversity but also in terms of specialist experience, such as people who have experience of trying cases involving children or people who have experience beyond the commercial. Candidates should, in the first instance, fulfil the criteria of intellectual ability and professional experience in practice, but then we might look to some of the other factors that would enrich our courts.

The Bill has much to commend it but much that needs to be looked at again. I hope that in Committee we shall make it very much better.

[Lord Mackay of Clashfern]

Did the noble Baroness see the television recording of the sentencing remarks in a recent murder trial in Scotland?

[Baroness Kennedy of The Shaws]

I did, but I think that one case can often make bad law. Of course, an individual judge giving a judgment in a case can make people think that that was interesting and reasonable. However, you can be sure that, as we cover all cases more regularly, certain judges will be considered too lenient and they will be pursued. We shall find that the hunger for punishment will be fed by certain television stations. I am concerned about where this will go, so I hope that a good deal of caution will be shown before we go down this road.