Criminal Justice and Courts Bill

Lord Paddick Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am concerned about the general thrust of this Bill. As my noble friend Lord Marks of Henley-on-Thames and the noble and learned Lord have already said, that general concern is what appears to be a withdrawal of power and discretion from judges and handing it to Ministers.

There are particular provisions I want to speak about. The noble Lord, Lord Beecham, criticised the Government for headline-grabbing measures. I hope that the Labour Opposition are not going to support headline-grabbing measures that suit their advantage and will actually oppose some of those measures that I think are headline grabbing, the first of which is Clause 23 on the corrupt or other improper exercise of police powers and privileges. Members of the House may wonder why I am speaking about this. Having been a police officer for 30 years, I thought that it might be obvious. I do not think that I can be accused of being an apologist for the police service. Anyone who thinks that should see last week’s “Panorama” programme. Indeed, I was one of the parties who took the police to judicial review over the phone hacking issue, and I will come back to that in a moment.

A number of cases concerning police misconduct have recently come into the public consciousness—one was mentioned by the Minister in his opening speech. However, the one recent case that resulted in a prosecution was that of a police officer for misconduct in a public office. Although the police officer was off duty, the case was successful and he was jailed. Therefore, I have two questions for the Minister. Like my noble friend Lord Marks, I accept that the police have special powers, but is the measure necessary at all in that there is an overlap with misconduct in a public office, which appears to be entirely adequate to cover the matters in the new provision? I am a liberal and I believe that we should have new laws only if they are absolutely necessary.

Secondly, if a new offence of misconduct in a public office is necessary, why have police officers alone been singled out for this offence? Other people who hold public office have similar powers—for example, immigration officers and officers from Her Majesty’s Revenue and Customs. If we are talking about access to confidential information that might be given inappropriately to the media, we should note that people working in the intelligence services and the Ministry of Defence also have access to such information. Indeed, what about the conduct of politicians? We have powers and privileges and some of us have been found to have allegedly offered to ask Parliamentary Questions for money or claimed expenses to which we are not entitled. However, these new provisions do not cover any of that. Will the Minister therefore please reassure the House that the police are not being unreasonably singled out by this proposal? In his opening remarks, he said that the existing offence of misconduct in public office was not always best suited to dealing with corruption. I would be grateful if he would elaborate on what that means.

Clause 25, which was introduced by way of an amendment in the other place, concerns the possession of an offensive weapon or bladed article in public or on school premises and the imposition of a mandatory custodial sentence. Consistent with my general concerns about the Bill and the removal of judicial discretion, not only does this clause compel judges to impose an “appropriate custodial sentence”, it goes on to define what that sentence is. The whole point of having judges, social workers, the probation service and, in some cases, medical experts providing reports on the backgrounds of those convicted of offences is to ensure that custodial and non-custodial sentences imposed by judges are appropriate. I also suggest that the imposition of a fixed custodial sentence in criminal proceedings without taking into account the antecedents of the accused should never be considered an appropriate custodial sentence. One has to ask what is the purpose of imposing such a draconian and inflexible punishment? In my considerable experience as a police officer, criminals rarely, if ever, think about what the likely penalty will be before they commit a crime because they do not anticipate getting caught.

In support of this amendment, some have quoted the current Commissioner of Police for the Metropolis, who says that he met offenders in a young offender institution and they told him that they no longer carried guns because of the mandatory five-year sentence for possession. Rather than a single anecdote, a colleague of mine conducted academically rigorous research with young offenders at the same institution, albeit some time ago. Most of them did not understand how they found themselves incarcerated—let alone that this was a possibility at the forefront of their mind when they committed street robbery. Surely the purpose of any legislation relating to the carrying of knives and other offensive weapons must be to reduce the rate of offending and reoffending. Even with longer sentences, any beneficial effect of a custodial sentence is often thwarted by the overcrowding in prisons—a problem that will only be made worse by measures such as this. What is likely to have the most beneficial effect on knife crime is to create the realistic belief in the mind of offenders that they will be caught.

In order to improve the chances that this will happen, the police need to work closely with people in communities prone to this type of crime, who know who the knife-carriers are, and who need to be encouraged to pass on such information to the police. If these members of the public believe that their son, partner or friend will definitely be sent to prison if found in possession of a knife, they are even less likely to provide that information to the police than they are now. In the absence of such specific intelligence, the police have to resort to the type of stop-and-search operations that create division and resentment between the police and their communities. Making detection more, not less, likely and allowing judges to tailor sentences in a way that they consider offers the best chance of rehabilitating the offender before them, rather than an inappropriate short-term sentence that is unlikely to prevent reoffending, must be a much better way forward.

Finally, on a very different issue, I want to express my concern about the proposed changes to the provision of information about financial resources in relation to judicial review, contained in Clause 65. The new provision requires that the applicant for judicial review declares not only how the application will be financed but,

“information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application”.

Again, I want to speak about my personal experience. As we have learnt over recent years and were reminded last week, evidence came into possession of the police that many people had potentially been the victims of phone hacking by News International, including me. Yet the police not only failed to properly investigate those offences first time round, apparently for reason of “lack of resources”, they also failed to tell the potential victims that they had identified them as potential targets of illegal phone hacking. In a police decision log relating to the case, a decision is recorded that these victims should be informed. There is no subsequent decision recorded that the police should not inform victims, and there is no explanation to date about why that original decision was not implemented.

I and other victims, including the noble Lord, Lord Prescott, decided to ask for a judicial review of, among other things, the police decision not even to inform the victims of potential phone hacking, as we felt that there was a fundamental principle here about the right to a private and family life, and the police’s responsibility to help such victims to protect their privacy. The noble Lord, Lord Prescott, put it more eloquently: “They should have told us to watch our phones”. Thankfully, our lawyers were equally incensed and agreed to work under a conditional fee agreement, but insurance against the costs payable to the other side if the case failed is very difficult to secure in such cases, and in this case it proved to be impossible.

Again thankfully, a rich benefactor agreed to underwrite the other side’s costs in the event of our losing the case, but on the strict agreement that his identity would not be revealed unless and until it was necessary to do so. We won the judicial review on the point that the police had acted illegally by not informing the victims of phone hacking in these circumstances, but it is doubtful that the case would have been brought at all if it were not for that benefactor. When I discussed the Bill with my lawyers, they questioned whether the proposed legislation would apply where costs are simply underwritten rather than when payment is made before the case proceeds. I should be grateful if the Minister can clarify whether a case such as mine would be affected by these new proposals.

It appears to me that important cases—my case is but one—are not going to be heard in the courts and important points of law are not going to be established if the Bill is passed as it stands. I wish my noble friend the very best of luck in reassuring me and this House on the issues I have raised.