Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we come to the Bill at a time when crime is falling. In 2013, according to the Crime Survey for England and Wales, there was a 15% fall in crime overall to its lowest level in more than 30 years. The fall in violent crime has been particularly marked. It has fallen for each of the past five years, which is profoundly welcome. What is more, with the rehabilitation revolution and the measures we took last year in the Offender Rehabilitation Act, I believe we have started to tackle the scourge of persistent reoffending that has blighted the lives of so many of our young people. On these Benches we are particularly proud of the contribution in this area made by my noble friend Lord McNally, who I am delighted to see in his place today. I know the whole House welcomes his inspired appointment as chairman of the Youth Justice Board. In the criminal justice field, the Bill should be judged by its contribution to cutting crime in general further, and in particular to helping young offenders avoid reoffending.

The Bill creates new offences, which we welcome. The most significant proposals are those to make ill treatment or wilful neglect by care workers a specific offence and to create another offence for care providers of gross neglect of their duty of care. Those in their charge have a right to expect to be looked after professionally, carefully and compassionately. We have all been appalled by the many recent accounts of lack of care in care homes and hospitals. Mid Staffordshire, which was mentioned by my noble friend, Winterbourne View in Gloucestershire, and the care homes in Essex and Croydon recently exposed by “Panorama” are but other examples of what has too often become regular cruelty by carers, often attributable to systemic failures in the organisations that employ them. My right honourable friend Paul Burstow in the other place has worked hard in advocating such provisions as are now proposed. His expertise on the subject and his commitment to better care are well known. These new offences will help to prevent such ill treatment and neglect, and to deal effectively with these terrible cases where they occur.

A further specific offence of police corruption may add only a little to the existing law, but it will serve to make it clear to police and public alike that police officers are entrusted with special powers, that they hold a position and role in society that makes it incumbent upon them to observe the highest standards and that, if they should fall short of those standards and act corruptly, they can expect to be dealt with severely.

We also welcome the proposal that images of rape are to be classified as pornographic. That is obviously right, and the proposed defence that acts portrayed were in fact consensual strikes a reasonable balance. We will, however, seek to add a new clause outlawing so-called “revenge porn”—that is, putting intimate pictures of former lovers on the internet without their consent. This nasty practice, if not curbed by law, threatens to become more widespread with the advent of high-definition video cameras on phones and cameras built into glasses. Such mean acts of revenge can have profound and devastating effects on their victims’ lives, causing deep distress, often psychological illness and havoc within personal, family and work relationships. In the other place, my honourable friend Julian Huppert suggested making this practice an offence, and my right honourable friend Maria Miller organised an Adjournment debate on the subject.

On the issue of rehabilitation, we will be looking carefully at the proposals for secure colleges. My party has been at the forefront of advocating a greater emphasis on education in custody for adults and young offenders alike. I welcome my noble friend’s commitment to education for people in custody. However, I wonder whether the establishment of secure colleges may not risk large numbers of young offenders being sent to a small number of large institutions, often far away from their homes, instead of to smaller ones with more personalised care and more links with their homes and families. I invite my noble friend to consider, with other Ministers in the department, how we can ensure that sentences served in secure colleges will not jeopardise the greater opportunity for through-the-gate support, which we have been at such pains to provide and encourage for offenders close to their communities before, as well as after, release.

For my part, I am also unclear how meaningful courses are to be organised in secure colleges. Offenders are, after all, sentenced all year round, not just at the beginning of college terms. Their sentences also vary in length. I am concerned that college-style courses may simply not work for many offenders. We look forward to the consultation promised by my noble friend on the secure college rules. My noble friend Lady Linklater will deal further with this topic in due course.

If we have a general criticism of the Bill, it is that too many proposals in it would remove or limit judicial discretion. It seems to be infused with a lack of trust in our judges. I regard some of the proposals as presenting a real danger of injustice in cases which should be dealt with on an individual basis, not by the application of a blanket rule regardless of the particular circumstances.

The proposal in the Bill that I fear most risks injustice is that for a mandatory sentence of six months’ imprisonment for adult offenders, and four months for 16 and 17 year-olds, for a second offence of possessing a knife in a public place. This was proposed as an amendment in the House of Commons from the Conservative Benches by my honourable friend Nick de Bois. Regrettably, Labour MPs lined up alongside the Conservative Back-Bench Members to support it. Liberal Democrats in the Lower House opposed the amendment and we will do so again in your Lordships’ House.

Of course knife crime is extremely serious and we must come down very hard on it. In many cases where an offender repeats an offence of possessing a knife in a public place, he or she will richly deserve a custodial sentence, but that should be for judges to decide on a case-by-case basis. Compulsory custodial sentences are the wrong way to deal with the issue. They stop judges deciding who deserves prison and whether prison will do any good in a particular case. They threaten to affect young black people disproportionately because more of them are subject to stop and search. There is no proof that compulsory prison works. As my honourable friend Julian Huppert said in the Commons:

“The question … is whether we should do the thing that sounds the toughest or the things that actually work”. [Official Report, Commons, 17/6/14; col. 1034.]

We have put all our emphasis in this Parliament on keeping young offenders out of prison where we can and rehabilitating them to lead useful lives in the community. Compulsory sentences are costly and overcrowd our prisons. This is a retrograde step for rehabilitation.

It is true that the Bill would permit a court to refrain from passing the mandatory sentence if,

“the court is of the opinion that there are particular circumstances which … relate to the offence or to the offender, and … would make it unjust to do so in all the circumstances”.

But that only serves to make my point: if a particular circumstances exception is to be widely applied, it makes a nonsense of the provision for mandatory sentences; if only rarely applied, serious injustice is caused in a number of cases. We are not persuaded that there is any justification for this approach beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime.

We are also concerned about the compulsory imposition of a criminal courts charge upon conviction, even for offenders who cannot afford it and for whom employment prospects may be affected by the existence of an outstanding charge because they cannot get credit and they are concerned by the effect on their earnings. I am concerned about the proposal that a court must dismiss the whole of a personal injury claim if it is tainted by fundamental dishonesty. As someone who has conducted many personal injury cases over the years for both claimants and defendants, my experience is that dishonesty in the presentation of personal injury claims is, regrettably, not uncommon. Defendants can often produce convincing evidence, with the aid of video surveillance or otherwise, to demonstrate that the degree of injury allegedly sustained by claimants, and the consequences of such injury, have been wildly exaggerated.

For my part, I have always believed that in appropriate circumstances, judges should have the power to throw out an entire case for extreme dishonesty or to reduce awards of damages to reflect the court’s view of such dishonesty. However, there are many cases which are affected by what might reasonably be described as fundamental dishonesty where the needs of the claimant for the rest of his or her life must come first and in fairness must be met, and where completely depriving the claimant of damages would be very wrong. But instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing.

I turn finally to the proposals for judicial review. Judicial review is the precious right of the citizen to challenge the Executive in the courts when a Government act unlawfully or exceed their powers. The law has been developed, as my noble friend said, over recent decades into what I suggest this House knows is an effective and elegant body of law. One understands that Governments do not relish being challenged in the courts: it is inconvenient. But it is the constitutional duty of this House to protect the right of challenge and to trust our judges to deal with challenges fairly and in accordance with the law.

The measures proposed in the Bill for judicial review risk deterring people with means from supporting legal challenges by making them disclose all their assets and threatening them with widespread orders to pay the Government’s costs personally. The proposals would prevent campaigning organisations and others joining in on cases as interveners to put the public’s case by making interveners pay all parties’ costs of their intervention and by preventing them getting their costs even when they win—and ex hypothesi therefore, even when they have shown that the Government were in the wrong. Campaigning organisations would find it harder to raise money to challenge the Government in the public interest. I welcome the indication from my noble friend today that the Government are open to persuasion on these provisions, but that persuasion needs to go a long way to produce a lot of movement.

Further provisions would allow the courts to protect litigants from costs orders—the so-called costs-capping orders—against them only in cases of general public importance. But what of the innocent member of the public who has been wronged in a particular but unusual case of government irrationality—nothing of general public importance but a serious case of injustice? Why should that citizen not have costs protection if the judge thinks it right that he should? In all these cases, as the noble Lord, Lord Beecham, pointed out, judges have at the moment appropriate powers in relation to costs and judges decide how they should best be exercised.

We will also wish to consider how far the proposed permissive power to make regulations to exempt environmental judicial review cases from the restriction on cost capping complies with our duty under the Aarhus convention to provide access to justice in environmental cases that is

“fair, equitable … and not prohibitively expensive”.

That will be difficult when the Aarhus Convention Compliance Committee has found that under our existing rules, the United Kingdom already fails that test.

There is no evidence that our judges let frivolous challenges or challenges that are of academic interest only because they make no difference, consume public resources unnecessarily. There is no established need for the cost deterrents in Part 4, and a justified fear that they will stifle legitimate cases. We will scrutinise Part 4 very carefully and resist unwarranted intrusions by legislation into areas that are best left to judicial discretion, particularly where what is at stake is the citizen’s right to hold the Executive to account in our courts.