Policing and Crime Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Faulks (Con)]

My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority.

Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so.

In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases.

Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.

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

My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.

I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.

A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.

The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.

I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.

Under this amendment a judge is entitled to say that he is,

“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,

and to,

“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.

The amendment further states:

“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.

I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.

It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.

[Lord Rosser (Lab)]

My Lords, I note that the noble Lord, Lord Marks of Henley-on-Thames, concluded his comments by saying that it is a matter of balance. I would concur with that view, but the balance concerned depends on which side of the fence you feel you might fall. I do not intend to detain the House for too long, since we have already had a number of Members expressing a desire to hear from the Minister. Nevertheless, I do intend to set out our position.

We do not support either of these amendments. Amendment 182 provides for pre-charge anonymity in all cases, including sexual offences, except where a magistrates’ court decides otherwise. Amendment 187 provides for pre-charge anonymity where a person has been accused of committing a sexual offence unless a judge decides otherwise. I am not a lawyer, and it may well be that my lack of knowledge of the law will be displayed in what I have got to say. But at present, as I understand it, there is an assumption of anonymity before the point of charge, except where the police decide to use their discretion in cases where they believe that disclosure of the identity of the person suspected but not charged is likely, for example, to lead to further evidence coming forward which will enable a stronger case to be made, which will enhance the likelihood of a successful prosecution.

We had a lengthy debate in Committee on the issue of pre-charge anonymity. We on this side acknowledged that a case could be made for going down this road. However, we also referred to the reality that there is evidence—for example, in sexual offence cases, where disclosing the name of the person alleged to have committed such offences has led to other victims coming forward and to a stronger case being able to be made against the accused to secure a successful prosecution. We have evidence that victims of sexual offences are often reluctant to come forward because of feelings that they will not be believed if it is their word alone against that of the alleged perpetrator. This is particularly so where that individual is a well-known and respected—at least, respected at that time—figure. We know too that there are sometimes feelings of shame about such offences, or feelings that such offences have to be tolerated, and a desire not to talk about it. These are feelings that are being expressed now with respect to the rapidly emerging scandal of sexual offences against young people in the football world—people are coming forward now that they know they are not alone.

We know too that the reporting of and convictions for sexual abuse cases are very low. Perhaps we should be spending some time considering why that is the case. We also need to take into account the fact that victims of sexual abuse—innocent people in spades—have had their lives darkened, including when the sexual offences were committed by well-known public figures. Of course, the victims themselves are rarely well-known public figures. During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sexual offence cases. I am afraid I do not wholeheartedly agree with what I think the noble Lord, Lord Paddick, was saying. Frankly, granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of serious offence, such as murder, fraud or, yes, child cruelty.

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Tabled by

[Lord Marks of Henley-on-Thames]

183: After Clause 152, insert the following new Clause—
“Disclosure of private sexual photographs and films without consent
(1) The Criminal Justice and Courts Act 2015 is amended as follows.(2) In section 33 (disclosing private sexual photographs and films with intent to cause distress)—(a) in subsection (1), after “disclose” insert “or threaten to disclose”;(b) in paragraph (b) of subsection (1), after “distress” insert “or recklessness as to such distress being caused”;(c) after subsection (1) insert—“(1A) It is also an offence to promote, solicit or profit from a private and sexual photograph or film that has been disclosed without the consent of an individual who appears in the photograph or film, knowing or believing that the same has been disclosed without such consent and with the intent to cause that individual distress, or recklessness as to such distress being caused.”;(d) omit subsection (8).(3) In section 35, omit subsections (4) and (5).”

[Lord Marks of Henley-on-Thames]

My Lords, I will speak also to Amendment 184 in this group. I will also mention the fact that my noble friend Lord Paddick will be dividing the House on Amendment 187—that would happen after the debate on Amendments 183 and 184.

[Noble Lords]

Oh!

[Lord Marks of Henley-on-Thames]

My Lords, I will not move Amendments 183 and 184.

Amendment 183 not moved.

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Moved by

[Lord Marks of Henley-on-Thames]

187B: After Clause 152, insert the following new Clause—
“Evidence about complainant’s sexual history
(1) The Secretary of State shall within six months of the day on which this section comes into force, publish a report on the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 (restriction on evidence or questions about complainant’s sexual history).(2) The report shall, in particular, include information regarding—(a) the number of applications made for leave in accordance with subsection 41(2) of the Act;(b) the number of such applications granted;(c) the number of such applications refused;(d) the number of prosecutions not proceeded with because of the victim’s concerns as to an application for leave;and to the extent numerical information is not available, as full information as possible regarding such matters.(3) The report may include proposals for the amendment or repeal of section 41 of the Act.”

[Lord Marks of Henley-on-Thames]

My Lords, I move the amendment on behalf of my noble friends Lord Paddick and Lady Hamwee. We debated an exactly similar amendment in Committee. It arises from the Ched Evans case and concerns the restriction on the admission in cross-examination of evidence about a complainant’s sexual history in sexual offences cases. The amendment arose from our concern to ensure that the restriction on the admissibility of such evidence in cross-examination was as strong as we had always believed it to be under Section 41 of the Youth Justice and Criminal Evidence Act 1999.

At the end of that debate, the Minister said that the Government had carefully considered the concerns that had been raised about the provision; that they would determine how best to look at how it was working in practice before deciding whether any further action needed to be taken; and that they would do that as soon as possible. A trenchant question from the noble Lord, Lord Kennedy of Southwark, elicited the answer that that was indeed a promise of a review, which is what we had been seeking.

The reason for tabling the amendment again on Report is to ask the Minister to elaborate further on the review that she has in mind. We are interested to ask what timescale is proposed for the review; who will carry it out, and how; what the terms of reference will be; and how evidence for the review will be collated. I hope that she will be able to respond on those questions at this stage and I beg to move.

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[Baroness Williams of Trafford]

My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so.

When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice.

I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year.

We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to the Minister for the further detail that she has given on the review. I quite accept her position that there is no need for a statutory requirement for it, so I propose to withdraw my amendment. However, in response to the speeches of the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, I make clear to the House, for those who may not be familiar with it, that concerns have arisen in the light of the decision of the Court of Appeal in the Ched Evans case, in which the admission of such evidence in cross-examination was permitted in a case in which many thought that it would be excluded. It is for that reason that this has become a matter of additional concern, and for that reason that we are extremely grateful that the review is to be carried out. I beg leave to withdraw the amendment.

Amendment 187B withdrawn.