§ Order for Second Reading read.
§ 4.9 pm
§ The Secretary of State for the Home Department (Mr. Leon Brittan)
I beg to move, That the Bill be now read a Second time.
The recommendations of the Royal Commission on criminal procedure covered two broad areas which it regarded as related. The first was the proper ambit of police powers and the corresponding safeguards for the citizen. The second was the machinery for the conduct of prosecutions.
In proceeding with this legislation in the Session immediately following the enactment of the Police and Criminal Evidence Act 1984 we are showing our acceptance of the view of the Royal Commission that adequate and modernised police powers must be accompanied by safeguards against any misuse of those powers, and our acceptance of its belief that the time has come to introduce a prosecution system which is wholly independent of the police. Taken together, the two enactments will amount to the most far-reaching reform of criminal procedures this century.
The main elements of the present Bill will be familiar to the House. The first part establishes the general framework for the Crown prosecution service. It is to have the conduct of all criminal proceedings instituted by the police, but is to operate independently of the police or any other local influence.
Part II amends the law governing the payment of costs in criminal cases consequential on the introduction of the new service. Part III contains some procedural changes, mostly minor ones. There is also one major change which I regard as of particular importance. That is the introduction of time limits on the bringing of criminal proceedings. The introduction of the Crown prosecution service is designed to improve openness and accountability, to increase consistency in prosecution policy, and to contribute to the timely and effective prosecution of offences. As an element in the new arrangements, time limits have an important role to play as a discipline to prevent unnecessary delay on the part of all who bring prosecutions — not just the Crown prosecution service.
The changes introduced by the Bill are changes to a system which is in need of considerable improvement. While there may be room for differing views on how much improvement should be secured, I do not think that informed commentators would quarrel with the assessment of the Royal Commission that the current arrangements are characterised bytheir variety, their haphazardness, their local nature and, at least so far as the police are concerned, by the unitary nature of the investigative and prosecutorial functions.Variations across the country remain greater than can be explained by reference to differences in local circumstances. That is incompatible with the fundamental principle of justice that like cases should be treated alike. It cannot be right, for example, that an offender has between twice and three times as much chance of being cautioned rather than prosecuted in some police areas as others. It is not as if all the forces making a high use of cautioning are rural, and all the low ones urban. There is 150 no clear pattern. But, as one step towards improving consistency, I have recently issued to all chief officers of police guidelines on cautioning.
Another illustration of the variety of arrangements across the country is that in six areas the police do not have prosecuting solicitors departments, despite the recommendation of the Willink Royal Commission on the police more than 20 years ago to the effect that they should be set up in all force areas. In many areas, too, the practice of police advocacy continues—again despite the Willink recommendation that it was an undesirable practice, and an inappropriate use of training and expensive police manpower.
Another respect in which there is clearly room for improvement concerns the number of weak cases reaching the courts. The evidence is more readily available in relation to the Crown court, where in 1983 approximately half of all acquittals were by order or direction of the judge. That is to say, there was insufficient evidence for the case to be left to the jury. It is plainly undesirable for cases to continue as far as this in the system when there is no reasonable prospect of conviction: unfair for the accused and undesirable for the courts, which face quite sufficient pressure without this unnecessary burden.
For all those reasons, change is needed and the Bill, therefore, gives effect to the principle of an independent service recommended by the Royal Commission to meet those criticisms, and to establish on a statutory footing the independence of prosecutors from the police. It reflects the principle that those responsible for the investigation of the offence should not also be responsible for the conduct of the prosecution.
In one important respect we have departed from the Royal Commission's proposals. The Royal Commission recommended that in some respects the new service should be accountable to a police and prosecutions authority, which would be an extension of the police authority. That arrangement evoked the criticism that it would not sufficiently secure the clear separation of the prosecutor from the police, which was a central reason for the change. It was also thought to leave open the risk of improper local influence over prosecution decisions.
In considering the various alternatives, we had in mind the need to provide adequate safeguards against interference in individual prosecution decisions. Because the line between them and general prosecution policy is so difficult to draw, and because of the great local interest in particular cases, we concluded that the service should not be accountable to a local supervisory body. Nor do we believe that it would be right to separate accountability for policy from that for resources, which was a feature of the variants on the Royal Commission's scheme suggested in the course of our consultations.
The national service which we propose, as well as securing undivided accountability, has other important advantages. It will be so designed as to maximise efficiency and effectiveness. It also offers the best prospect of improving consistency in prosecution policy, which it will be the duty of the Director of Public Prosecutions to promulgate. One area in which consistency will be particularly important is the prosecution of juveniles, which was given considerable attention in another place. The director's guidelines will give full weight to the special factors which arise in cases involving juveniles.
151 It is important to stress that a national service need not be a centralised one, with the delay and extended lines of communication that that entails. No system is exclusively local or exclusively national. It is the balance between the local and national elements that is crucial. The Crown prosecution service established by the Bill will have strong local elements. In fact, the framework set out in the Bill allows for maximum delegation of decision taking to the local level, with Crown prosecutors able to exercise any of the powers and functions of the director with respect to the conduct of proceedings. This means that under the new arrangements it will actually be possible for more, not fewer, decisions to be taken locally, with some cases which are now referred to the Director of Public Prosecutions being conducted by the local Crown prosecutor.
The extent to which this will occur is set out in the White Paper published by my right hon. and learned Friend the Attorney-General last December. Among the cases currently referred to the director but which will for the most part be handled locally in future are straightforward murders, perjury, multiple rapes, kidnapping and serious robberies. The director is even now making arrangements to devolve some cases to prosecuting solicitors' departments to smooth the transition to the new service.
I shall not describe the provisions of the Bill in detail, but it may be helpful if I highlight some of its more significant aspects.
The head of the service is to be the Director of Public Prosecutions. Under him and appointed by him will be the chief Crown prosecutors, for the most part each covering a police area. The chief Crown prosecutor will need to work in close consultation with the chief constable in his area, but of course he will have to do so in a way which is consistent with maintaining his independence.
§ Mr. Teddy Taylor (Southend, East)
In this excellent Bill there appears to be provision for the payment of salaries to almost every specified category except the chief Crown prosecutor. Does my right hon. and learned Friend feel that before the Bill completes its Commons stages he will be able to say what the salary level should be for the chief Crown prosecutor? In view of the substantial responsibility, does he believe it appropriate that it should be on a par with that of a chief constable?
§ Mr. Brittan
I should not like to make a commitment of that kind at this stage, but I am sure that this is a matter which will fall to be considered by the House in the course of the further deliberations on the Bill.
The director, as head of the service, will act under the superintendence of the Attorney-General, as he does now. By building on this well-established relationship our proposals secure accountability for decisions in the service while guarding against the risk of improper influence. It has long been a feature of our constitution that the Law Officers act in a quasi-judicial capacity when taking decisions on prosecutions in individual cases and in relation to prosecution policy.
The accountability envisaged for the new service is underpinned by the Director of Public Prosecutions' annual report. This will give details of any significant changes in the distribution of business between the centre and local offices, thus giving Parliament oversight of the degree of delegation acutally achieved in the new service. 152 It will also include the code of guidance which the director is to promulgate to Crown prosecutors on the general principles governing certain decisions in the conduct of cases and any alterations to it. These general principles will, therefore, also be open to scrutiny by Parliament.
The Bill also provides for the transfer of existing staff in prosecuting solicitors' departments to the new service. Recognising the experience and calibre of such staff, the Bill sets aside the normal requirement for recruitment by way of competition and enables the staff to be transferred in a block under regulations to be made by the Attorney-General. The regulations will set out the terms and conditions which will govern the transfer, which will be negotiated with representatives of the staff concerned. These negotiations have started. As we said in the White Paper in October 1983, we are concerned to proceed in the fullest consultation with those who now work in the system. This is a time of considerable change for the staff concerned and I recognise the uncertainty that it has caused for them. But it is also a time of challenge, with the enhanced responsibilities given in the Bill and the career structure implied by a national service. I am confident that the staff concerned will rise to that challenge.
The cost of the new service will depend very largely on the numbers of staff to be employed by it. As some hon. Members may know, a study has been commissioned from management consultants on the factors affecting staffing levels in the new service, including the working methods to be adopted. The cost cannot therefore be finally determined until we have had an opportunity to consider the final report from the consultants, which will be submitted very shortly, but the cost of a national system is not expected to be significantly higher than that of a local one. Whether staff are organised on a national basis or locally, there will still be the same need for advocates in court and for the preparation and review of cases by lawyers and their support staff. There will be an extra cost for the small central management function which will be located in the Director of Public Prosecutions department, but this will be at least partly offset by the increased efficiency which we expect the national service to achieve, including the savings from increased delegation of casework.
Part II modifies the provisions governing costs in criminal cases. Changes are made both of principle and of practice. The new service will be funded directly by parliamentary Vote, and awards of costs from central funds in its favour are not therefore required. The Bill also puts other public authority prosecutors in the same position, while retaining the power of the courts to award private prosecutors their costs from central funds.
Part II will widen considerably the scope for granting costs from central funds to successful defendants who are charged with summary offences. There is, of course, at present no power to make such orders, and this has long been recognised as anomalous. This was clearly a matter of considerable concern in another place and the changes to the Bill that were made there as a consequence will represent a significant improvement to the current position. Powers are also sought to enable the courts to make such orders in respect of costs as they think fit against any party to the proceedings who has put an opponent to unnecessary expense in relation to those 153 proceedings. Thus, part II not only brings the present provisions for costs up to date but introduces significant and, I hope, welcome reforms.
§ Mr. Ivan Lawrence (Burton)
As the Government are busy decentralising, left, right and centre, partly on the argument that centralised costs are always higher than decentralised costs, is my right hon. and learned Friend being serious in suggesting that the costs involved in this measure will not rise substantially above those which would apply if there were a locally based independent prosecution service?
§ Mr. Brittan
I am saying that, and I gave the reasons why. I went on to talk about a different aspect of costs—the award of costs—but at an earlier stage I said that one was talking only about the extra cost of the small central management function of the Director of Public Prosecutions department, and I indicated that that would be at least partly offset by the increased efficiency which we expect the national service to achieve, including savings from increased delegation of casework. So I do take that view.
The House will recall that the Bill as introduced in another place included a clause empowering the Attorney-General to refer to the Court of Appeal any Crown court sentence which appeared to be excessively lenient. The particular sentence would not have been affected, but the Court of Appeal would have been able to offer an opinion on it. We saw this as a strictly limited but none the less worthwhile change which would have helped to strengthen public confidence in our system of criminal justice. The Court of Appeal already takes the opportunity, when passing judgment in appeals against sentence, to set out principles of sentencing in particular kinds of cases for the guidance of the lower courts, and I very much welcome its willingness to do so. The procedure which we proposed would have widened that role by providing an opportunity for the court to give guidance specifically in the context of cases where the sentence had given rise to public concern. My right hon. and learned Friend the Attorney-General made it clear that the power was one which he would want to use sparingly.
This proposal did not find favour in another place. I must say to the House frankly that my noble and learned Friend the Lord Chancellor, my right hon. and learned Friend the Attorney-General and I were not, and are not, persuaded by the arguments deployed there. It would be difficult to recognise the essentially limited measure which I have described in the apocalyptic visions which were conjured up by some of those who spoke in the debate in another place. Their chief criticism—that the procedure for referring sentences would have breached the principle that the prosecution should not be involved in sentencing decisions—seems to me, with great respect to those who advanced it, misconceived. There is a world of difference between routine prosecution involvement in sentencing decisions—which would, of course, be quite at odds with our traditions — and a procedure under which the Attorney-General, as a Law Officer, assesses whether a sentence has given rise to genuine public concern and raised issues which could usefully be ventilated in the Court of Appeal. Nevertheless, the strength and breadth of feeling on the subject in another 154 place was considerable, and not to be set aside lightly—certainly not without a wider measure of support for the provision than has so far come forward.
§ Mr. Brittan
No, I should like to finish.
I should accordingly like to reflect on the matter further. I have no present plans to reintroduce the provision during the remaining stages of this Bill, but I do not propose simply to let the matter rest. Public interest in sentencing—which was scarcely mentioned in the debate in another place—is strong and persistent and we shall do the country no service if we ignore it. I shall, as I have said, reflect on the matter further and will in any event have it very much in mind in preparing the Criminal Justice Bill which we plan to introduce later in this Parliament.
§ Mr. John Morris
I shall comment more generally on what the right hon. and learned Gentleman has said, but he distinguishes between the role of the prosecutor—the routine prosecution, as he calls it—and the intervention of the Attorney-General in a case under the original clause 22. How would the Attorney-General know how to intervene unless he had heard from one of the routine prosecutors?
§ Mr. Brittan
I think the right hon. and learned Gentleman will appreciate that there is a wide variety of other sources of information which the Attorney-General has, as all of us have, about particular cases which cause public concern. I am not suggesting that those involved in the prosecution process would be forbidden from communicating any concern that they had to the Attorney-General. However, that is a different matter from the legitimate concern that would arise if it were part of the routine prosecution function to consider in every case whether such a reference was necessary.
§ Mr. John Ryman (Blyth Valley)
Has the Home Secretary considered, perhaps when thinking about the future Criminal Justice Bill, restoring the power of the Court of Appeal, criminal division, to increase sentences as well as reduce them upon an application for leave to appeal? That would be a jolly good way of discouraging frivolous appeals.
§ Mr. Brittan
It might be a good way of discouraging frivolous appeals, but it would not meet the particular concern with which the original clause 22 was designed to deal. It would be a very foolish defendant, or one who was very poorly advised, who found himself in a situation in which an unusually lenient sentence was passed and he none the less appealed. Therefore, whatever the merits of the hon. Gentleman's suggestion, it does not amount to an alternative to the proposition that was originally advanced.
One of the more significant new features which part III will introduce is a scheme of time limits on bringing cases to trial—new, that is, in England and Wales. Right hon. and hon. Members will know that statutory limits on the period before trial have for many years applied in Scotland.
We see clause 22, which provides for time limits, as an important part of our strategy for reducing delay in bringing cases to trial. I do not need to tell the House why the problem of delays is urgent and compelling. The Home Affairs Committee documented it in its report "Remands in Custody" last May. The increase in our prison 155 population since 1979 is not because more offenders have been sentenced to imprisonment or to longer terms of imprisonment; the number of prisoners under sentence has remained steady at about 35,000. Instead, the increase has come about because the number of prisoners awaiting trial has increased from 4,000 in 1979 to 8,000 now. Some of those in custody have waited a year or more. There are more untried prisoners partly because the courts are dealing with more cases and more people are being remanded or committed in custody. The other major factor is that the periods spent in custody awaiting trial have grown longer.
Where the accused is in custody, delay is particularly serious. All unnecessary delays are against the interests of justice. Memories fade. The accused is left uncertain of his fate and the impact of conviction and sentence is less closely connected with the offence. The case for speedy trial is overwhelming, whether or not the accused is in custody.
We have in hand a number of measures to tackle delay. My noble and learned Friend the Lord Chancellor has secured additional resources for the Crown court and is taking steps to ensure that they are used as efficiently as possible. He and I recently issued a circular to the magistrates courts about means by which delay could be reduced. We are anxious to encourage the courts to play a full part in tackling the problem. It is a problem the solution of which does not lie in the hands of the courts alone. The move towards statutory time limits, which would bite essentially on the prosecution, is therefore part of our strategy.
In going down that road, we are in tune with the Home Affairs Committee's helpful report. It is true that time limits will not of themselves increase court capacity, but they will set a standard, and their existence should stimulate the same sense of priorities elsewhere in the system and have a general "toning up" effect. The fact that the prosecution has a duty to prepare itself to proceed within a set period should generate a greater sense of urgency all round.
Accordingly, clause 22 gives the Secretary of State power by regulation to specify preliminary stages of proceedings, that is up to commencement of trial, and to set limits to them. Different periods may be set for different areas, in case the field trials which we are now planning suggest that this will be necessary — undesirable as it would be—in order to fix limits which are both tight and realistic. Two kinds of limits may be prescribed: custody time limits on the maximum period for which an accused may be remanded or committed in custody in proceedings for the same offence; and overall time limits on the period the prosecution is to be allowed to complete each stage of the proceedings.
The court dealing with the case will have power to extend a time limit in any case, but only if it is satisfied that there is good and sufficient cause for doing so, and that the prosecution has acted with all due expedition. There will therefore be a direct discipline on the prosecution. Of course, where the delay is caused by the defence, the prosecution could expect to have its application for an extension granted.
If a custody limit is reached, the accused will have to be released on bail. The clause provides for the regulations to apply appropriate provisions to release in those 156 circumstances. The court might be empowered, for example, to require the accused to stay at a specified address or to keep away from witnesses.
If an overall limit is reached, the Bill provides that the accused is to be treated for all purposes as having been aquitted. This may mean that an accused does not have to face proceedings because the prosecution takes too long bringing the case to trial. Some will baulk at that result, but it is the only ultimate sanction to compel the prosecution to meet a time limit. It is possible now for the courts to require the prosecution to proceed within a given period, the consequence being that if it does not the case is lost. I trust, of course, that the new prosecution service will avoid that consequence by bringing cases forward expeditiously. That is the whole point and that objective, broadly, is what has been achieved by the Scottish legislation covering these matters.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
At least, as a matter of principle, will my right hon. and learned Friend try to see that these matters are dealt with in an evenhanded fashion, so that the delays that can be brought about vexatiously by the defence will trigger off the same sort of treatment as when delays arise from the prosecution improperly or inadequately preparing its case? I have in mind the fact that some precise time limits are placed upon the police in bringing prisoners to a point where they can be charged under the new arrangements.
§ Mr. Brittan
I entirely agree that the benefit that we are seeking to confer by these specific time limits on prosecutions should lead to a tightening up of the whole criminal process, including, I hope, a more rigorous approach to unjustifiable delays on the part of the defence. I agree with my hon. Friend.
§ Mr. Robert Maclennan (Caithness and Sutherland)
Why did the Home Secretary think it appropriate to split responsibility for setting the time limits between the Lord Chancellor and himself? As I understand it, under section 77 of the Supreme Court Act 1981 the Lord Chancellor has the power to set time limits in respect of a Crown court. It would seem more natural to concentrate the powers which the Home Secretary has described under the Lord Chancellor's Department.
§ Mr. Brittan
No doubt those matters can be considered in Committee. The provision to which the hon. Gentleman refers has not been a generally effective means of securing the purposes that I have just been describing. I think that what is proposed in the Bill will have that effect.
§ Mr. Lawrence
Can I tempt my right hon. and learned Friend to be a little more forthcoming about the time limitation which he envisages might be the rule for the regulations? Is he thinking about the 110-day rule, as there is in Scotland?
§ Mr. Brittan
I do not have in mind particular time limits in terms of a number of days. I shall explain how we hope to come to the decisions on what the actual time limits should be. I have described the scheme, but clause 22 is an enabling provision, leaving the specification stages to be limited, and the time limits themselves, to regulations to be made by statutory instrument. I should like to explain why we are not at this stage proposing particular limits which would apply directly.
The Home Affairs Committee recommended that the Government should commit themselves in principle to the 157 introduction of limits, geared to the establishment of a national prosecution service, and should embark on experiments to test what limits might be feasible in summary and indictable cases. The Committee further recommended that the period eventually agreed upon should take into account the special difficulties faced by the courts in London and the south-east.
That is the approach that we are adopting. The powers will be there, if Parliament approves, when we need them. In the meantime, we shall embark on field trials in a few areas to test the practical implications and effects of the scheme. We shall also then be able to judge what limits are appropriate. It would be unwise to commit ourselves even tentatively to particular periods at this stage. The limits will need to be tight enough to act as a real discipline. On the other hand, they should not be so tight that there will be frequent applications to extend them to which the courts would feel obliged to agree. My Department is drawing up plans for the field trials, and we shall want to consult fully, both nationally and in the areas concerned.
Regarding the timing of the implementation of the legislation, we are aiming to bring the new service into operation in October 1986, except in the six police force areas covering the metropolitan counties, where — to avoid two reorganisations one after the other—the new service will start operating from April 1986. When the powers to make time limits can be invoked must of necessity depend on the outcome of the field trials, which will take a little time, but I can assure the House that we shall move as quickly as we can in this area. I wish to make it clear that our commitment to the principle is clear. The field trials will test not whether but how the time limits are to be applied.
The changes made by the Bill are of fundamental importance to the operation of our criminal justice system. It is my belief that improving the efficiency and fairness of the system, to which both the Crown prosecution service and time limits can contribute, will enhance public confidence in it. This should be an objective shared by us all. I accordingly commend the Bill to the House.
§ Mr. John Morris (Aberavon)
We in the Labour party welcome the main thrust of the Bill to set up a prosecuting service which is independent of those responsible for investigating offences — the police. There may be differences of view on both sides of the House about whom the service should be accountable to. It is interesting that the Government have adopted the views of a dissenting member of the Philips Royal Commission. Some are not persuaded that the proposed solution is right, but I go along with the Government's proposed solution. No hon. Member, and certainly not the Home Secretary, can accuse me of being an advocate of centralism but, indeed, of the contrary. In this area, which is different from policing—I am a fervent opponent of a national police force—there is no role for local or local government accountability for decision making.
I am satisfied that the proposals to decentralise decision making to the local officers are an important step to separate the agglomeration of wheat and chaff that has accumulated through piecemeal statutory intervention on the desks of the director and the Attorney-General. I am 158 pleased that the Government have yielded to persuasion from another place to enhance the status or, at least, the title of prosecutors. Titles are important. I hope that that will help to reinforce the role of the chief Crown prosecutor and the Crown prosecutor, as opposed to Crown prosecutors and prosecuting officers, as originally envisaged.
Given our experience of the Government as an advocate and practitioner of centralism, the matter must be watched. There is an undertaking, when the service has settled down, to review the provisions which require the consent of the Law Officer or the director. Clause 9 provides for the director's annual report to be laid before Parliament. I believe that that was to be done many years ago.
More should be promised. England and Wales are entering into a novel area. Within five years of the operation of the new service, there should be an independent inquiry into its working. We propose Bills in Parliament, but we have no inbuilt machinery to consider how effective they turn out to be. Given the lack of unanimity about the accountability of the service, that is, about to whom it should be accountable, and given that the Government, who are relying on an internal working party's report, are flying in the face of the Philips report, we should at least be promised that if both the Government and I are wrong, without loss of face the machinery should be set up so that the matter can be reconsidered free from departmental restraints and inhibitions. A five-year period would be a proper and suitable period for the service to settle down.
The suggestion has been made that, although the Bill, which separates decision making and prosecution from investigating and charging, is an important step in the right direction for the freedom of the individual, it is part of a balancing act with the Police and Criminal Evidence Act 1984. Although the Opposition approve of the purpose of the Bill, that is in no way to be taken as our acceptance of that argument. When Lord Elton introduced the Bill, he expressed the aim to increase public confidence as one of the purposes of both Bills. Indeed, the Home Secretary also said that this afternoon. I hope that the Bill will do so. So far, the Police and Criminal Evidence Act 1984 has not earned its spurs in that regard. Indeed, the reverse is true. Public confidence is important and, as a sign of flexibility in considering what is being done, we should have the machinery, lest the Bill should turn out not to be right.
The Government have probably opted for the most expensive solution, despite what the Home Secretary said. He was especially vague about that. I thought that the Tory party was greatly concerned about taxpayers' money and that it should be quantified. However, the Home Secretary was not helpful in that part of his generally helpful speech. I see the concurrence from hon. Members below the Gangway that there was an element of vagueness and fudging in what he sought to tell the House.
This is not a privatisation measure. So far as private solicitors who continue to do some of the work in this area, and so far as the proposals are to do more magistrates' court work in-house with full-time officers as opposed to briefing barristers, this is an extension of State activity, and central State activity at that. I am glad that Conservative Members realised sharply, as I would expect, that that seems to run contrary to the whole theme of the Government's privatisation philosophy. I thought 159 that I would make that point so that the House would understand that I understand that, even if the Cabinet as a whole does not.
Despite the Government's assurances, I fear the long-term future—perhaps not so long term—of the criminal Bar. What will happen when the Treasury gets its hands on that? Who can put his hand on his heart and say that in five or 10 years' time there will not be a Rayner report or something of that ilk, which advocates more and more in-house work? I fear that that will be the Treasury's approach as surely as night follows day and it would strike at the heart of an independent profession which I believe to be one of the bastions of liberty.
The proof of the pudding will be in the eating. As I understand the arithmetic, after allowing for the transfer of staff now doing the work, the replacement of 600 police officers should make it a cheaper service, although the redeployment of the officers would be an additional financial burden. I therefore find the Home Secretary's position on cost difficult to swallow, unless it is a public acknowledgement that policemen are more highly paid than lawyers, which may well be so. Be that as it may, we are entitled to examine this aspect very closely in Committee and we shall not be satisfied with the type of case put forward by the Home Secretary today.
The service must be rewarded in such a way as to attract good people. The career structure promised must also satisfy some of the best people. I understand that existing prosecuting county services do not find recruitment easy. If the new service is to bear the promised fruit, as we hope, it must attract lawyers of quality who can give proper consideration to the material before them and, now that they are separated from police activity, take a more detached attitude to their responsibilities.
The physical rehousing of the prosecutors away from buildings occupied by the police, where necessary and practicable, will also be an important step in ensuring that independent prosecution, like justice, is seen to be done.
The Association of Prosecuting Solicitors has raised an important point about salaries and status. How will the salary of prosecutors be related to that of chief constables? The intention is clear in terms of status, but it will be undermined if salaries are not comparable. On this point, the Home Secretary was particularly vague and unhelpful. He must have some idea of the salary envisaged for a chief Crown prosecutor, and he can scarely maintain that he cannot disclose what he has in mind. I hope that the Solicitor-General will be able to help us on this important matter when he replies to the debate.
The same principle applies to this as to other specialist areas. I have some experience in this because many years ago I was responsible for that part of the scientific Civil Service that was answerable to the Ministry of Defence. Difficulties arose due to the relationship between it and other civil servants. I found that many run-of-the-mill scientists were better rewarded in toto than their counterparts in industry, but that problems arose when we wished to retain or obtain the services of more able practitioners because we were hidebound by general restraints and Civil Service career comparability. This aspect must be examined carefully and I hope that it will be a subject of particular concern in the review that we hope to establish.
We are also entering a new area in terms of the responsibilities of the Attorney-General and the Director of Public Prosecutions and their relations with the House. 160 A fine balance must be achieved between accountability to the House and the danger of too detailed examination of individual cases that have been devolved down. If administrative devolution is undermined by the sheer weight of statistics and information flowing to the director's office, devolution itself may be negated.
More generally, I have often wondered how this country can afford an administrative machine which has to be prepared to answer to the House at two or three days' notice on the most mundane of matters which happen to come within ministerial responsibility. Certainly no industrial machine could afford that. Given the complexity of modern state intervention—whatever history may call the present Government it will not describe them as a nonintervention Administration—we must consider whether we can afford this, but that is a matter for another day. The application of the doctrine of ministerial responsibility poses real problems as we enter this new area and only a very confident or perhaps ignorant man would claim to have found the perfect answer at this stage.
The Attorney-General and the Director of Public Prosecutions will be intervening less in particular cases and there is to be a review to achieve more consistency in this respect, but to whom will the residuary legatee be answerable? Like the Government, I have rejected local answerability, so to whom is the Crown prosecutor to be answerable?
The office of the Director of Public Prosecutions is a marvellous safety valve for the Attorney-General. After an initial hiccup not long after the office was created, it has grown in respect. The Attorney-General can come to the House and state that he has been advised by the director. The Attorney-General is above all else a political animal —that is why he is here—whereas the director is not a political animal, and that is the strength of his office. That is a matter of considerable assurance to most people.
While the director's role was limited we could survive on the philosophy—attributed, I believe, to the present director—that his relationship to the Attorney-General is not that of a permanent secretary to a Minister, and, of course, it is not. Indeed, it is more. The director is an independent expert. But we are now in a new ball game. In a parliamentary democracy we cannot allow offices of state to expand, however well they are thought to be fulfilling the state's needs, without seriously considering the problems of accountability. The interface between the Crown prosecutor and the director, between the director and the Attorney-General and between the Attorney-General and Parliament poses fundamental problems.
I believe in the accountability to Parliament of all servants of the state. I do not believe that there is any short cut to that end and I am not sure tht we have found the right or permanent solution in this case. I believe that this aspect must be examined further. Experience will have to tell us how best to work it out in the future. The aim must be ultimate accountability with a minimum of particular intervention. This is not an exact science.
I very much welcome the improvement in the Bill in setting out what must be contained in the director's guidelines to prosecutors. That is an essential aspect of the need for the Bill — to achieve natural uniformity in decision making while allowing individual discretion within the guidelines. I am sure that anyone with knowledge of criminal work will agree with me here. In my youth, some county prosecutors were notorious for seeking their pound of flesh and the search for truth was 161 not always the motivating factor. It would be putting it too high to say that persecution took the place of prosecution, but it came fairly close to that in some cases. Other forces were more relaxed, but even now there is far too much fiction in the idea that prosecuting counsel is an independent agent. Despite the efforts of the past few years in reducing the sheer numerical weight of counts in indictments, there is still room for improvement.
Counsel are not independent. Time is lost in the courts today in seeking new instructions during trials. Cases are brought that should not have been brought. Two or three youngsters may plead to offences involving, say, motor cars. The fourth, who refuses to plead to an offence of allowing himself to be carried in a vehicle, will have the benefit, at cost to the State, of a full trial. He is frequently very much on the margin. Therefore, mature, independent and speedy response will help to make the flame of justice burn more strongly. That is another of the hopes and aspirations in the Bill.
I listened with interest to the Home Secretary's comments on the original proposal in the Bill about the referral of sentences to the Court of Appeal. I was reminded of the words of the old song: "She would not say yes, she would not say no". The Home Secretary appeared still to believe in his original premise, but did not find it convenient or expendient to proceed now.
In all my readings of the Royal Commission and the White Paper I have yet to discover an independent progenitor of the clause as originally drafted, whereby sentences passed by a Crown court judge, which the Attorney-General believed should have been different, should be referred to the Court of Appeal. That would mean that the Attorney-General thought that the sentences were too lenient.
The other place did a great public service in throwing the clause out on its ear. Apart from the poor, benighted Government spokesman, the clause had only one friend among 14 noble Lords who spoke on it. Seminars of judges and recorders have thrown up their hands in horror.
What was the origin of the clause? The Government were elected on a platform of the maintenance and improvement of law and order. Resources were to be provided to tackle crime properly. The clear inference was that, after the period of the wicked Labour Government, the crime rate would fall. Resources were provided, but the crime rate did not fall. In every branch of crime, it rose. Ministerial activity had therefore to be apparent. At the Tory party conference the wolves were baying for blood. The "Hang'em and flog'em" brigade was in full cry. Scapegoats had to be found. The Home Secretary, bringing all his wisdom to bear, was the fall guy. His track record on capital punishment had won him many friends. He was aided and abetted by public concern about one or two sentences and by some unfortunate judicial comments. He therefore presented to the conference the tablets of stone—or at least one slab of reconstituted stone dust. Eureka—he had found the answer: let lenient sentences be referred to the Court of Appeal. There was a useful precedent. The Attorney-General could refer points of law of difficulty and dissatisfaction. Why not, therefore, report erring judges? Let them be put in the stocks in the Strand.
Having gone out on a limb quite unnecessarily in the wake of the Ponting case to support the trial judge in his law, the Attorney-General——
§ Mr. Morris
That may well be, but it was a novel role for the Attorney-General, given our belief in the constitutional separation of the judiciary from the Executive.
Whether he was right or not, he declined my invitation in a written parliamentary question to refer to the Court of Appeal important matters of law that had arisen in the trial. I do not blame him. The danger that after a jury had brought in a verdict of "not guilty" an appellate court might do the same thing was more than one man could stand.
I exonerate the Attorney-General and Solicitor-General of the present frivolity, which, fortunately, the House is not to be burdened with now — although the Home Secretary is putting a pistol to our heads, letting us know that he may well return to it on a more propitious day. I fear that the Attorney-General and Solicitor-General have been leaned on by their political friend, the Home Secretary. Apart from the fact that the machinery was ill-thought-out and that no Department of State except the Home Office could have devised such machinery, exemplifying both legal and political novelty, there was also a complete failure to understand the role and duties of the prosecutor. Prosecutional neutrality is fundamental to our judicial process. The prosecutor is himself a minister of justice. His job is to present the facts fairly and, only where the facts so justify, to seek—but not to strive unfairly to get — a conviction. His job is to present but not to persecute.
What role has the prosecutor in sentencing? The very rules of the Bar prohibit any role. I quote:Prosecuting counsel should not attempt by advocacy to influence the court in regard to sentence.I have asked the Home Secretary how on earth, if there is a distinction between the occasional intervention by the Attorney-General and the norm for routine prosecutors, the Attorney-General is to find out whether something has gone wrong. The Home Secretary said only that there were other means. That must mean the newspapers. There would be a re-trial, as regards sentences, by the newspapers. That is a real danger. As judges and as the other place has argued at length, there would be elaborate campaigns to build up a head of steam before such a reference was made.
§ The Attorney-General (Sir Michael Havers)
Although the right hon. and learned Gentleman has held many offices of State, he has never served in the Law Officers' Department. Every day, I receive many letters about sentences of all kinds. Plenty of information is received not from newspapers or prosecuting solicitors, but from ordinary citizens.
§ Mr. Morris
I am most grateful to the Attorney-General. That confirms my view. If the prosecutor is not to have a role, the newspapers would have such and would, together with independent letters, help to build up a head of steam that might make the Attorney-General's task exceedingly difficult in some cases.
The central theme of the Bill is to enhance the independence of prosecutors. The clause under discussion contradicts in one material part the whole theme of the Bill by clouding the traditional role of independence that prosecutors are enjoined to adopt.
Hard cases hardly ever make good law. Good lawmaking is not enhanced by seeking to placate political 163 supporters who are reacting illogically to current events. It would have given me considerable joy if the Home Secretary, having seen the light at last, had told the House today that the Government had no intention of proceeding with the matter. Unhappily, he gave us no such assurance.
§ Mr. Eldon Griffiths
I am not a lawyer and am trying to follow the right hon. and learned Gentleman's argument. Is he saying on behalf of the Opposition that sentences ought never to be increased?
§ Mr. Morris
If the hon. Gentleman, who acts for the police, had bothered to read the original Bill, he would know that even the Government did not suggest that there should he an increase of sentence. The original proposal was that opinion should be given about the adequacy of the sentence. That is an entirely different matter. I have not adumbrated the arguments advanced in another place, but could do so at length. The Lord Chief Justice has issued guidance from time to time on a wide range of issues which he thinks other judges should bear in mind, although each judge is wholly independent. That recently happened with cocaine, and the same has been true for non-violent offences. Such reasoned and lengthy judgments have been of great help. The Lord Chief Justice has been supported by other judges in the Court of Appeal when delivering such judgments.
We should consider the ignominy of a defendant who has been let off too leniently and has his name dragged through the courts again. However, I do not want to go into the merits of the matter.
I had hoped that the Home Secretary would pay tribute to the constructive way in which the other place considered the Bill. It has emerged a stronger and better Bill. There is much to welcome in it, but there are still some areas of concern, which I am sure will be approached constructively. The other place gave much thought to the Bill's effect on the prosecution of children and young people. The fears might be best met administratively. I welcome the extension of the right, to acquitted defendants, to take costs from central funds in summary trials and on certain appeals. However, I have reservations about the effect of those provisions on a defendant who is contributing to his legal aid.
I welcome the proposals to set time limits for the prosecution of criminal offences. I wish that they were more definite and left less to experiment. We might hope to reassess those provisions when the experiments are completed. The Home Secretary was especially vague and failed to respond when asked what period of time he had in mind.
§ Mr. Brittan
Does the right hon. and learned Gentleman favour the recommendation of the Home Affairs Select Committee that there should be trials on these matters before decisions are taken, or does he think that he knows all the answers now?
§ Mr. Morris
If the right hon. and learned Gentleman had been listening, he would have heard me welcome the experiments. However, I should have welcomed even more some indication that he had reached a view about what period should be involved. He seems to have none in mind and to be waiting to see what turns up.
§ Mr. Morris
With respect to Ministers, the difference here is between an open mind and a blank mind. As with costs, the Home Secretary is not able to assist the House as much as he might.
The Government have not got it right as regards the discontinuance of prosecutions by the prosecutor. I agree that the prosecutor should be able to do that, but I suspect that many defendants will take their chance and insist that the prosecutor come to the court formally to offer no evidence, rather than rely on discontinuance, to avoid the possibility of future prosecution. We shall see.
I should have liked the Government to take this opportunity to introduce legislation on the right of defendants to advance disclosure of the prosecution's case in magistrates' courts. That issue has been around for many years and I should have hoped that we would be told——
§ Mr. Brittan
Is the right hon. and learned Gentleman aware that that has been done and that the relevant provision will be implemented in a matter of months? The right hon. and learned Gentleman ought to acquaint himself with the facts.
§ Mr. Morris
I have followed this issue with some care and I had hoped that the long-awaited promises would be fulfilled. I know that reform is coming, but I should like there to be some discipline to ensure that it comes soon.
I suspect that the minutiae of the Bill will not be the main cause of worry to us. There will be some points of difference, but they will be dwarfed by anxiety on both sides of the House about how the animal to which Parliament is giving birth will carry out its task. Its trainer is the Home Office, but its riders will be the Attorney-General, assisted by the Director of Public Prosecutions. They, not the Home Office, will carry the can. The Government have done much in another place to alleviate the fears, but we need machinery which ensures that independent expert judgment is brought to bear on prosecutions.
I have no objection to the proposal that investigating and charging remain under the same responsibility. The real power lies in the prosecutor's power to discontinue, provided that he is sufficiently robust. There should be greater uniformity and yet awareness of local needs. Guidelines should be framed to encapsulate those aims, which do not necessarily coincide and could be said to be potentially in conflict.
I am sure that parliamentary pressure for greater accountability to Parliament will grow. Lord Rawlinson percipiently observed in another place that the Bill might impose more parliamentary duties on the Attorney-General, and he wondered whether that had been thought of. I think that he is right. Bearing in mind the caveats that I have entered concerning the dangers of central accountability negating devolved administration — a difficult tightrope to walk—none of us should object to greater accountability. Indeed, in a parliamentary democracy we should welcome it. Nevertheless, we should always be wary of growing complexity and intervention by the modern state and ensure that the House does not abdicate its responsibilities. Any increase in centralisation must include machinery for accountability. Parliament will only have begun its task when the Bill is passed.
§ Mr. Mark Carlisle (Warrington, South)
I welcome the Bill. This is not a party political matter, and the Bill is important because it deals with the prosecution of offenders and, therefore, with our criminal law. I was therefore somewhat surprised at the near complete lack of support on the Opposition Back Benches for the right hon. and learned Member for Aberavon (Mr. Morris) during his speech.
It is right that the prosecution system should be independent of the police and that we should have a Crown prosecuting agency. I do not think that it will make much difference in practice, but it is important that justice is not only done but is seen to be done, and that the division between the investigation and the prosecution of offences should be recognised in this way.
Like the right hon. and learned Member for Aberavon, one can remember experiences of one's early days at the Bar when one felt that the prosecution, in the form of the police in certain smaller borough quarter sessions, was attempting to exert an unnecessarily substantial influence on the way that prosecutions were conducted. I do not believe that that happens today. Nevertheless, it is right that we have accepted the recommendations of the Royal Commission and are setting up a totally separate service.
I am convinced that the Government are right—and I am glad that the right hon. and learned Member for Aberavon, speaking on behalf of the Opposition, agrees —in having a centralised service and not one that is locally accountable. The Royal Commission was wrong in recommending that the prosecution authorities should be locally accountable. They should be accountable through the Director of Public Prosecutions to the Attorney-General.
One point with which I should like my hon. and learned Friend the Solicitor-General to deal when winding up the debate relates to clause 4, about which the Home Secretary said nothing. This clause, as it stands, merely provides that Crown prosecutors should have the same right of audience as solicitors holding practising certificates. One understands why the clause is there. Without it, barristers employed by the Crown prosecuting agency would not have the right of audience which at present exists for solicitors who would be employed by that agency. It is obviously right that they should have this right.
Equally, the clause says:The reference … to rights of audience enjoyed in any court by solicitors includes a reference to rights enjoyed in the Crown court by virtue of any direction given by the Lord Chancellor under section 83 of the Supreme Court Act 1981.The Solicitor-General knows well the concern that exists among the younger members of the Bar that the effect of setting up a Crown prosecuting agency may over the years amount to having a salaried prosecution service at the cost of prosecutions being done by members of the Bar. I do not believe that that is the Government's intention. Indeed, it would be totally unacceptable if the price for an independent prosecuting service was to be the death of an independent Bar. I invite the Solicitor-General to repeat the assurance which I understand was given in another place, namely that the Government have no intention of widening the rights of audience of solicitors in the Crown courts, thereby allowing those employed by the Crown prosecuting agency to undertake prosecutions in the Crown courts. If the prosecution of cases, whether they be 166 pleas of guilty, committals for sentence or appeals, were to be taken out of the hands of the Bar in the Crown court, that would have such a deleterious effect on the chance of young members starting at the Bar as to be a grave attack on the future of an independent Bar.
The Solicitor-General should also confirm that since, at the moment, a defence solicitor who has defended someone in the magistrates court is entitled to appear for that person on a committal for sentence or on appeal, clause 4 does not mean that the same will apply in regard to prosecutions. In other words, can he confirm that it does not give to the Crown agency the right to do committals for sentence or appeals in the Crown court? If it does, the Bar is right in fearing that that would be the thin edge of the wedge towards a salaried body taking over the prosecution of cases in the Crown court and, therefore, a serious attack on an independent Bar, which is extremely important for the future of the country.
§ Mr. Kenneth Hind (Lancashire, West)
No doubt my right hon. and learned Friend will agree that, although the opportunity has been given for solicitors acting in criminal proceedings on committals for sentence and appeals to the Crown court to take advantage of their right of audience, they have singularly failed to do so universally throughout the country. Therefore, to extend that practice to the prosecuting side of the profession would no doubt be equally useless because they would find, as defence solicitors who specialise in that find, that they do not have the time to appear in the Crown court.
§ Mr. Carlisle
I am afraid that I do not agree with my hon. Friend—I wish that I did. I think that the reason why solicitors do not normally take advantage of the right to appear in the Crown court for the defence is that they probably have only one client and they find it more convenient to give that case to a member of the Bar who is already appearing in that court. If the prosecution authority had the power to deal with committals or with appeals, it migh have three or four cases in the same Crown court on the same day, and it would start using that power. It is because I think of that distinction that I am anxious that the Solicitor-General should confirm that the clause does not give that power and that the Government have no intention of widening the rights of audience for solicitors in the Crown court.
The second point with which I wish to deal briefly relates to the present clause 22. I shall reserve my remarks for the ill-fated clause 22 to the end. Clause 22 allows for time limits. This is an important part of the Bill. The Home Secretary is right when he says that the delay in cases coming to trial is of major concern in the conduct of our criminal business. Justice delayed is often justice denied. For those who are in custody and who are then acquitted or who receive a non-custodial sentence, it means that much time may have been spent unnecessarily in prison. That cannot be right.
My right hon. and learned Friend the Home Secretary mentioned the large number of remand prisoners. If my recollection of my days as a junior Minister at the Home Office is right, one might also point out that usually these people are kept in the most overcrowded conditions in any prison. One should think not only of those who are on remand in custody, but of those who are on remand on bail. Those of us who practise in the courts and who are used to appearing in court often forget the strain on an 167 individual who is charged with an offence which to him is of major importance even if it is of a reasonably minor nature. The fact that he has that hanging over his head for an undue length of time is not acceptable. In fact, it is utterly unfair. Therefore, anything that can be done to speed up the hearing of cases must be right. The third reason why it must be right is that the recollection of a witness of events is inevitably tarnished by the passing of time. If, by bringing in time limits, we help speed up the hearing of cases in the Crown and magistrates courts, the clause is welcome and important.
To digress for a moment, the reasons for the delays are extremely complex and varied. The delay is due partly to the increased volume of crime, but it is only that. To stick to what I know best, the Crown courts, they are chock-a-block with many cases which could have been dealt with in the magistrates courts. I suspect that I speak not only for myself on this point. My experience, sitting as a recorder in the summer months—most hon. Members try to sit in September, when there is no question of the House sitting—it is that one is regularly trying cases, at great expense to the state, which could adequately have been dealt with in the magistrates court.
What is more, one often finds that when the cases get to the Crown court the defendants duly plead guilty to offences which could easily he dealt with in the magistrates courts. There is nothing that one can do about it. One must not sentence a person more severely because he pleads not guilty or because he chooses to exercise his right to go to the Crown court. The only thing that one can do is to make him pay the costs, but, regretably, he is probably unemployed or on such a low salary that he cannot possibly pay. One has no sanctions against such an individual.
I realise that the proposals of the James committee, which reviewed the amount of work going to Crown courts, was controversial, but it is time that we again took the James report out of the proverbial cubby hole in the Home Office and dusted it off. We should at least debate its proposals in what court cases should be tried summarily.
§ Mr. David Ashby (Leicestershire, North-West)
Does my right hon. and learned Friend think that perhaps the reason why some of these cases come to the Crown courts is that magistrates courts are so often badly serviced and run? Time and again there are cases where someone wants to plead not guilty, his case comes on one week, but the court sits for only one hour a day, and the next hearing is a week later, with the next one three months later, and so it goes on. At least in a crown court a case starts at the beginning and goes on to the end.
§ Mr. Carlisle
My hon. Friend is right. The extraordinary system in London, where cases in the magistrates courts are adjourned for weeks on end, is a disincentive for trials in magistrates courts. All I am saying at this stage is that we should address ourselves to the question of why so many trivial cases—they are of course important to the individual—get to the Crown court and block up the court. Equally, from my experience of sitting as a recorder, it is disturbing to find that, despite pre-trial certificates and such things, cases listed as trials often turn to pleas in court, and the court duly adjourns well before lunch. One cannot keep other cases hanging around just in case such a thing should happen.
168 Various aspects of the way in which we divide the work between the magistrates courts and the Crown courts, and the mehod of trial by Crown courts, need to be looked at if we are to deal with the matter of genuine concern—the delay that takes place. Some cases are so stale when they get to trial that they become irrelevant.
§ Mr. Lawrence
My right hon. and learned Friend may have missed a remarkable development in recent months. I am referring to the Government's implementation of private schemes for the section 48 requirement to serve the prosecution evidence in magistrates courts proceedings. As a result, there has been a large increase in the number of pleas of guilty in magistrates courts, which means that in due course my right hon. and learned Friend's court will be less burdened with cases coming up from the magistrates courts than it might otherwise have been. Perhaps my right hon. and learned Friend would like to congratulate our right hon. Friends on the Front Bench on that.
§ Mr. Carlisle
I do congratulate my right hon. Friends on that. I may have overlooked it, but I am glad that it, has happened. As was said in the other place by those who have looked at these matters properly, that is one of the ways in which to encourage more cases to be dealt with by the lower courts. I welcome it entirely.
I make two other points about delay, both of which are personal and based on my experience, but worth making. The feeling is shared by many that cases take longer in London than elsewhere. I am not sure of the cause of this delay. It may be the fault of my profession, or it may be due to the organisation of the courts, but, whatever it is, one gets the impression that there is not the same urgency to get on with cases in the metropolitan area as in other parts of the country.
Secondly, there has been a remarkable change in the length of time that cases take. I think that my right hon. and learned Friend the Solicitor-General, who started at the Bar at about the same time as I did, as did the right hon. and learned Member for Aberavon, will agree that any case that took three days used to be thought of as a long case. Now, any case that takes less than two weeks is considered to be a short case. The photo-copying machine, perhaps our own verbosity—of which I am probably at the moment guilty—and various other matters all caused this to come about, and the problem needs to be considered. I welcome clause 22 and hope that it will have some effect this year.
The great thing about a Second Reading speech is that one can talk about what is not in the Bill as well as about what is in it. Therefore, I shall talk about what is not in the Bill now, but was there when it started in the other place—the old clause 22. I thought that the right hon. and learned Member for Aberavon spoilt his rather good argument by making a bad point about the Ponting case. Like him, I am glad that my right hon. and learned Friend the Home Secretary has decided not to attempt to restore that clause to the Bill.
I was concerned when I read the reports in the papers after the defeat of the old clause 22 in the other place that that was the Government's intention. As I attempted to express my view that I was opposed to such a move by my right hon. and learned Friend the Home Secretary, I say now in his absence that I am grateful that he decided riot to do it. However, I am concerned at the suggestion that 169 this decision is only temporary. Surely my hon. and learned Friend the Solicitor-General must realise that the old clause 22 was ill-thought-out, illogical and wrong in principle.
It was wrong in principle because the prosecution in this country does not have an interest in the length of sentences imposed. Whatever my right hon. and learned Friend the Attorney-General may have said, and whatever may have been said in the other place, the old clause 22 could not have been run without the prosecution having an interest in the length of sentences. Who otherwise will draw the matters to the attention of the Attorney-General? From whom would the pressure come if not from the prosecution, which was to be asked if it thought that the sentences passed were adequate?
The old clause 22 would also have meant that the Attorney-General would have had a direct involvement and interest in sentencing. It is as wrong that in sentencing in individual cases the Government or the Attorney-General should have a direct involvement as it is that prosecution counsel should have a direct involvement. The old clause 22 was misconceived and ill-thought-out, because it would not have dealt with the allegedly identified evil at which it was aimed. Of course, the occasional notorious lenient sentence causes concern, but the Bill did not provide that such sentences could be put right. It proposed that the Attorney-General should have the right, under the cloak of anonymity if possible, to refer a case to the Court of Appeal so that it could say whether the sentence was notoriously lenient or right.
Let us consider that concept. If there were to be anonymity and no one knew which case had gone to the Court of Appeal which said that Judge A was wrong, how would the public's concern be placated? If the intention was to placate public concern, that could be done only if it was known that an appeal related to the case of Mr. A who had been dealt with notoriously leniently.
It is nonsense to suppose that the public would be placated to hear that Mr. A, who had been fined £5,000, should have gone to prison for 12 months, but was still walking the streets. That would not improve the standing of the judiciary in the eyes of the public. It would not increase confidence in the working of the legal system. The proposal was ill-thought-out.
Such a procedure would be unfair on individuals. Sentencing is a matter for an individual judge, who hears all the evidence. Cases differ in degree and mitigation differs in individual cases. The only people who can make up their minds are those who hear all the facts in open court.
What would happen at the Court of Appeal? Would the judge be represented to say why he gave the sentence that he passed? Sentencing cold, knowing that the sentence that the court said it would have imposed will not be served, will lead to pressure for longer sentences. Therefore, sentences will be pushed up, but the Home Secretary and the Lord Chief Justice have both said that their general desire is to reduce the average length of sentence.
There is an adequate existing system. The Lord Chief Justice lays down guidelines for sentences. That has happened in cases that have caused great concern. The Lord Chancellor has expressed a view about the inadequacy of a sentence and, within a week or two, the Lord Chief Justice 170 has laid down general guidelines on what the proper sentence should be in general cases, though not in individual cases, where the mitigating circumstances are not known to him. That is the right way to proceed.
Having spoken for far longer than I intended, I end by sending a message to the Home Secretary. Clause 22 had no friends except my hon. Friend the Member for Southend, East (Mr. Taylor). It was opposed unanimously by all who sit as judges, recorders or in any sentencing capacity. Obviously, my right hon. and learned Friend the Home Secretary had to say today that the Government would not necessarily accept for all time the defeat in the House of Lords and that he would look at the matter again. I suggest that, having looked at it, he should chuck it and forget it.
§ Mr. Gordon Oakes (Halton)
Like my right hon. and learned Friend the Member for Aberavon (Mr. Morris) and the right hon. and learned Member for Warrington, South (Mr. Carlisle), I support the Bill's general principle of separating the investigative and charging function from the prosecution function. I believe that both sides of the House accept that that is a good thing. However, I have more reservations than my right hon. and learned Friend or the right hon. and learned Gentleman about the centralising effects of the Bill on the prosecution service. The House ought to worry about that.
The right hon. and learned Member for Warrington, South tempted me to intervene when he put up an understandable, vigorous and spirited defence of the criminal Bar. I wonder whether, when we have an independent Crown prosecuting service set up by the Government, it will be necessary to be so preservative of the rights of the Bar. By definition, the Crown prosecutor will be a responsible, independent person. I hope that the Home Secretary will extend rather than restrict his use of the powers under section 83 of the Supreme Court Act 1981.
It would be nonsensical if a Crown prosecutor who had conducted a case from its inception had to hand it over to a barrister when it reached the Crown court. That would be particularly nonsensical in the case of a guilty plea. There may be some cases where it is necessary and no doubt the Crown prosecutor will often prefer to hand a case over to a barrister, but there will surely be many cases when it will be quicker and cheaper for the Crown prosecutor to carry on with the case, especially when there are guilty pleas.
I have not practised as a solicitor for 15 years, so I have no interest in the matter, though I retain a warm regard for my former profession. However, I should declare an interest as an honorary vice-president of the Association of County Councils—the hon. Member for Devizes (Mr. Morrison) is the other. The ACC is worried about the Bill's centralising effects.
Like my right hon. and learned Friend the Member for Aberavon, the association does not accept the financial memorandum. It believes that the proposed scheme will cost considerably more than is set out in the memorandum. My right hon. and learned Friend made an excellent suggestion when he said that we should look at how the system works over the next five years—this is a leap in the dark in England and Wales—and that if it does not 171 work properly or becomes too costly or too centralised or we find that insufficient local judgment is being allowed, we should produce a new Bill to remedy the defects.
In the old days, some courts were virtual police courts. Cases were presented by a chief inspector or an inspector or even by a sergeant. I sometimes felt great anger when I saw that policemen had spent considerable time, night and day, pursuing a case, only to have it thrown out on a simple, elementary matter of law when the prosecuting authority had been too mean to employ a qualified person to conduct the case. As a result, villains got off.
Circumstances have changed. All but six county councils have a prosecuting solicitors' department under either a chief prosecuting solicitor or the chief executive. Therefore, in the vast majority of cases there is that independence between the prosecution and the solicitor-client relationship or between the police—perhaps the police authority—and the prosecuting department of the county. That system works very well, but the Bill will throw it away in favour of a more centralised system.
My right hon. and learned Friend the Member for Aberavon said that he was second to none in his opposition to a centralised police force. I must say to him and to the House that a centralised prosecution service could be a first step along that road.
Another fear of the Association of County Councils is that, although the Home Secretary said that considerable local independence would be given to Crown prosecutors, the White Paper nevertheless contains a provision for very tight control should the central prosecuting office decide that it needs greater control. The Government may say that they are opposed to local prosecution because there is a risk that a politically-motivated county might influence its prosecutions. Can the Government tell me of any instance of that happening since the 1964 Act? That view might be relevant to certain centralised services where there may be political influence, but I do not think that there is a single instance—whether the political control of a county be Conservative, Labour or Liberal — of any political intervention at county level in the prosecution of a case. I am greatly worried about centralisation, about its possible effects and about the disruption of a system that is working so well.
I suppose that the Government will say that people in prosecuting departments can automatically, if they wish, go into the national prosecution service. Indeed, the financial and public service manpower memorandum shows, astonishingly, that the figures to operate the new scheme will be considerably greater than those needed for the existing scheme. It appears that jobs will be available, but that need not necessarily apply on the ground. A prosecuting solicitor, managing clerk or senior person may not want to leave his county. He may have a wife working as a teacher, or something similar. If he goes into the national prosecuting service he can be sent elsewhere. Therefore, he may elect to leave the prosecution service and go into another branch of the law. That could be a danger for existing staff.
I am speaking mainly on behalf of the Association of County Councils. It is seriously concerned about clause 17(2). Although I applaud most of the Bill in its effect on costs, clause 17(2) prohibits the payment of costs out of public funds to any local authority. I am talking not about the ordinary, run of the mill police criminal case, but of many other cases taken up in the courts by a local authority. The provisions of clause 17(2) could have 172 serious repercussions on local authorities and the way in which they operate. Local authorities are scared to death of targets, limits and budgets and of what may happen if they stray a few pounds over a target. Therefore, there is the possibility that a local authority may be deterred from undertaking a major prosecution because it feared that even if it won its case the costs would be too great if it could not ask for them to be met by public funds. I do not think that the clause is necessary. I hope that in Committee the Government will agree to delete that little irritation from the Bill. Indeed, I know that they made a great many amendments to the Bill in another place.
I have considerable worries about the centralising effects of the Bill and I hope that in Committee the Government will agree to give much greater independence to the man on the spot—the local prosecutor—and less power to the central prosecuting authority.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
It is always a pleasure to follow the right hon. Member for Halton (Mr. Oakes), with whom I have discussed many matters. I think that this is the first time that I have had the pleasure of following him on a strictly legal issue. Unlike him, I am not a solicitor. Nor, unlike my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) and my hon. and learned Friend the Member for Burton (Mr. Lawrence), am I a barrister. That gives me an enormous advantage in dealing with this Bill.
The Bill has two origins. First, the Philips Commission produced an excellent report which recommended that an independent prosecution service be introduced. Secondly, the Bill has its origins in the Committee stages of the Police and Criminal Evidence Bill. In the last Parliament, the Government decided that an independent prosecution service was not necessary and could not be afforded. Therefore, it was not included—as Philips recommended—in that Bill. Indeed, it would have made that Bill so unwieldy that it would have been quite unmanageable in Committee, so the Government were right not to include it.
I distinctly recall that my right hon. and noble Friend Lord Whitelaw said that such a service would he extremely expensive and could not be afforded. I also recall that the Government reached the conclusion that they would be unable to get the Police and Criminal Evidence Bill through both Houses unless something was done about an independent prosecution service. So we owe this Bill not only to Philips but to the realities of parliamentary procedure—and that is democracy—in the Committee stages of that Bill. I make no complaint about that, and I do not think that my hon. and learned Friend the Solicitor-General will do so either.
I very much support the Bill in principle. When the idea of an independent prosecuting service was first adumbrated by Philips, it was opposed by many in the police service — in which I am happy to declare an interest. It was especially opposed by many superintendents who had been effective prosecuting officers. They were worried that the Bill would takeaway from the police a duty that they valued. Some of the strictures that we have heard, including some from my right hon. and learned Friend the Home Secretary, about the present system are not justified. I recognise that there has been a certain haphazardness and some public disquiet, but by and large, for the reason given by the right hon. Member for Halton 173 —that in most counties there already is separation between the police and the prosecution—it is not the case that public confidence has been lost in the present arrangements.
On the contrary, compared with many other countries—and I have some knowledge of the United States and possibly a little of France and Germany — over the generations we have had a relatively efficient and certainly an economic system of bringing prosecutions against which there is not a strong indictment. Notwithstanding that, I think that the Bill should be carried. It clearly ensures that in future there will be a proper distance between those whose duty it is to investigate crime and apprehend offenders and those whose job it is to prosecute those people before a court of law. It must be right to distance these two functions. I believe that in the long run this will be in the best interests of the police service as well as in the interests of criminal justice.
I support the Bill just as strongly because of its outward appearance. In the end, it is the reality—the substance—that counts, but appearances matter too. The Minister of State in another place used an old cliché when he said that justice must not only be done but be seen to be done. The Bill will contribute to that end by the openness of the procedures, and therefore I welcome it for its appearance—for its cosmetics—as well as for its substance.
I must, however, make four points which cause me concern. The first is about the so-called specified proceedings. Henceforth, the Director of Public Prosecutions, and, under him, the new independent service, will become responsible for the conduct of all criminal proceedings, with the exception of specified proceedings. It is important that the Solicitor-General should tell us tonight exactly what those specified proceedings are to be. They are defined in the Bill as whatever the Attorney-General says specified proceedings should be. All the more reason why my hon. and learned Friend should state clearly what this means.
There is, unfortunately, a small but important group of people in society who will not benefit from the new independent prosecution service. I refer to police officers who are accused of minor criminal offences. Whenever a police officer is accused of a major criminal offence the matter goes to the Director of Public Prosecutions. Before the Police and Criminal Evidence Act 1984 was passed, all criminal charges against the police went to the director, and rightly so, for a charge of crime against a police officer is never minor. Any charge against a police officer involving crime means that he is in breach of his oath of office and contract with the public.
Unfortunately, the Police and Criminal Evidence Act created a distinction between those allegations of major crime against the police which will continue to go to the Director of Public Prosecutions and those minor criminal charges which may henceforth be dealt with by the local chief officer of police by way of discipline.
The value of the director, particularly in these matters, was that he guaranteed impartiality, total independence, and consistency as between one police area and another, and he guaranteed that if there was a decision not to bring proceedings under the 50–50 rule or as contrary to the national interest, that judgment would be made by him on a national and consistent basis. No chief officer of police 174 can do that. No officer should arrogate to himself the ability to decide what is or is not in the general public interest.
Fortunately, that will not happen under the Police and Criminal Evidence Act because only minor criminal issues concerning discipline will be applied to police officers so charged. Nevertheless, it is wrong in principle that the Bill should say that henceforth all criminal proceedings shall be dealt with by the independent prosecution service except charges of crime against police officers which are regarded by the local chief constable as minor.
Having for more years than I care to remember been involved with the police, I know that many chief officers, admirable people though they are, can be affected by local pressures, quite apart from being influenced by a man's previous discipline record. In addition, their attitudes vary from one force area to the next. The purpose of the Bill is to remove haphazardness and inconsistency. Let the measure apply to all and not to all save that small number of police officers who are subjected to minor criminal allegations.
I cannot believe that my hon. and learned Friend intends to deal with this matter under the specified proceedings exception. The definition of "proceedings" may or may not cover the question of charges of crime, and that may provide a technical way out of the problem to which I have referred. Be that as it may, I urge the Solicitor-General to recognise that this is a matter of some importance to the police and should be dealt with clearly.
My second point of concern is about the same matter but in relation to clause 8. I shall not deal with Committee points at this stage, and I hope that the Government Whips will note that I have no desire to become involved in any Standing Committee proceedings. The weight of legal skills on Standing Committee would in any event, be such that my presence would contribute nothing.
Under clause 8, however, the Director of Public Prosecutions can, and no doubt will, require all chief officers of police to tell him what is going on. They must send him reports. I hope that under this power the director will require chief officers to report what they have been doing about all minor criminal proceedings affecting their officers. In that way, the director will be able to form a judgment in the event that a chief officer has been improperly influenced by local, political or other considerations or where he has been unjust or unfair to accused officers in his application of discipline.
My third point is about appeals against sentence. I join the overwhelming majority of police officers in being dissatisfied with the present situation in which derisory penalties are imposed and about the fact that, at least in some courts, there seems to be an unwillingness to make the sentence match the crime.
I appreciate all the arguments against what was proposed in the original measure, particularly in the ill-fated clause 23. I agree with my right hon. and learned Friend the Member for Warrington, South. Indeed, had it come before us, I would have voted against it because it was a dog's dinner. It would have created the worst of all worlds. It implied that, somehow, something would be done, but it would in fact have achieved nothing but chaos.
Therefore, from the point of view of the police service, on the one hand, and from the view of my right hon. and learned Friend, who may have seen it from a different angle, on the other, it is clear that, whatever disagreement we may have had on the substance of the matter, we come 175 together in believing that what was proposed was wrong. For that reason, I am glad that their Lordships decides to throw out the clause.
However, I part company with my right hon. and learned Friend the Member for Warrington, South in that I welcomed the remarks of the Home Secretary today in which I understood him to give notice of his intention to bring forward some mechanism by which appeal against sentence will in future be allowed. That, I gather, will be introduced when a new Criminal Justice Bill is brought forward. I hope that I interpret the Home Secretary aright on that. An examination of Hansard tomorrow will show that he went much further than simply making the best of a bad case. My understanding is that my right hon. and learned Friend gave an undertaking that the Government would provide a method of appeal aganst sentence, but we shall have to wait and see. I hope that the Government do so.
I appreciate the fact that my hon. and learned Friend the Solicitor-General may start from a slightly different base from that of my right hon. and learned Friend the Home Secretary. Sometimes, however, triangles on different bases have the same apex. I hope that the customary unanimity of view will he expressed later by the Government Front Bench.
I hope that there will be some form of appeal against derisory inadequate sentences. I express that hope not out of a desire for revenge or a wish to appeal to the public outside, who are affronted by over-lenient sentences, but in the interests of justice. Over-lenient sentences are as much an injustice as excessive sentences. My hon. and learned Friend the Solicitor-General should take action.
§ Mr. Mark Carlisle
I hope that it was not thought that I was implying that one should not be concerned about over-lenient sentences. One should be concerned about them, and I agree with my hon. Friend. Should we not try to achieve greater consistency in sentencing? That can be done only by the Court of Appeal giving guidelines in the way that has already been done in certain respects. I agree that over-lenient sentences are just as serious as excessive sentences.
§ Mr. Griffiths
I am glad that, as a legal amateur, I appear to have achieved a degree of unanimity between two Queen's Counsel, the right hon. and learned Member for Aberavon (Mr. Morris) and my right hon. and learned Friend the Member for Warrington, South, in accepting that excessively lenient sentences are as offensive as excessively harsh sentences. If there is consensus on the problem, let my right hon. and learned Friend the Home Secretary come forward with a solution and not simply do nothing, as he would do if he left out clause 23 and took no further steps. I for one shall wait eagerly to see what he produces. I do not envy him his task, but I look forward to hearing more details when we consider the Criminal Justice Bill.
I tread diffidently in considering my fourth point about delay. My concern is that it may be thought outside the House that all delays are inevitably caused by the prosecution. That is not so. In some cases the defence mischievously, vexatiously, frivolously or maliciously holds up the proceedings. That is not in the interests of justice. The Bill should be even-handed. It should place constraints on the prosecution. It is a scandal when justice is delayed and denied. It is a scandal when there is 176 improper delay because of the inefficiency of the police or the courts. But equally it is not in the interests of justice when delays are caused for mischievous reasons by the defence. It is important for the court to be able to impose penalties on both the defence and prosecution alike for unnecessarily and wrongly delaying proceedings.
Not all the delays arise from the police service. My hon. and learned Friend the Solicitor-General knows a great deal about this aspect. The Police and Criminal Evidence Act has started a new series of clocks running with regard to the prosecution of offences. Regardless of the weather or the evidence, within 36 hours or, in some cases, 96 hours of a person being arrested the matter must be brought forward. No one knows more about this than my hon. and learned Friend, for we have soldiered through the vineyards—I through two, he through only one.
Is the ticking away of the clocks which has been brought about by the Police and Criminal Evidence Act additional to the requirements arising from this legislation that the Home Secretary contemplates introducing? It may well be that my right hon. and learned Friend wants to put both aspects together, and that could be one of the reasons why so many experiments are required. There is an urgent need for clarity. For example, a house may be burnt down and the police may have reason to believe that it was done not by accident but deliberately by the owner. It may take the police four days to sift through the rubble under which they find someone who has apparently been murdered. The police need time to undertake that forensic sifting before they can prosecute. I want to ensure that the time allowed by the Police and Criminal Evidence Act to permit the necessary investigation to be undertaken before a person is brought to trial is additional to the time allowed taken for bringing a prosecution to trial. I suspect that my hon. and learned Friend the Solicitor-General will be able to satisfy me on this point.
§ Mr. Ryman
Perhaps the hon. Gentleman has just made a completely false point. It is well established that it takes time to collect and examine forensic evidence. Inevitably, charges are brought and the forensic evidence is offered later when it has been assimilated and statements have been produced.
§ Mr. Griffiths
If I am on a bad point, the Solicitor-General will be able to meet my point entirely. One of the attractions of the House is that one can elicit clarity from Ministers and the apprehensions of those outside can thereby be lessened.
But the hon. Member for Blyth Valley (Mr. Ryman) is not entirely on a good point. His party took a strong line on this. The agreement that he has shown to the proposition that investigations take time and this must be allowed for was not accepted by the Opposition during debates on the Police and Criminal Evidence Bill. On the contrary, the Opposition opposed the idea and, on a number of occasions, voted that way on three-line Whips. Perhaps the hon. Gentleman, who does not always slavishly follow his party's line, did not do so.
I turn finally to costs. Originally, because of the expected very high cost, the Government opposed bringing in the Philips recommendations in the timeframe suggested. I shall not embarrass my hon. and learned Friend the Solicitor-General by citing the estimate that I was given but I believe that the costs will be a great deal more than the financial memorandum suggests. I do not 177 know whether my figures are accurate, but it has been broadly put about that the 600 police officers who are in one way or another engaged in prosecution throughout the country—apart from those in metropolitan London—will be replaced by about 400 solicitors. Lest the right hon. and learned Member for Aberavon is under a misapprehension —he suggested that the police are better paid than the solicitors—I must tell him that 600 police officers are a great deal less expensive than 400 solicitors. Those police officers are not prosecuting full time, but are performing other duties as well. I believe that basic staff costs will be higher than has been suggested.
The Conservative party has rightly committed itself to containing public expenditure. That is central to everything that we seek to do in our economic and social policies. The Government, however, have drastically increased public expenditure in relation to law and criminal justice. In a sense, I am one of the shop stewards who have probably helped to bring about the largest public expenditure increase in a long time on the police. I am sure that that was a correct decision by the Government.
In addition, over the past two years, the Government have, through the Police and Criminal Evidence Act 1984, introduced new costs with the tape-recording of all interrogations—and rightly so, but there will be a cost. We have introduced a requirement for a new consultation procedure between the police and the local community— and rightly so, but it will have a cost. We have required detailed training of the police in all the new procedures provided under the Police and Criminal Evidence Act, in particular, custody officers and all that goes with that—and rightly so, but there will be a cost. We have brought about a new police complaints procedure and authority—and rightly so, but it will have a cost. We have vastly increased the paperwork of the police—not so rightly so, but it will have a cost.
Taking all those matters into account, I am worried that further costs will be incurred as a result of passing the Bill.
The Bill is a good one. But if we will the end, we must will the means. That goes without saying. I am worried that the aggregate cost of all those changes will place severe pressure upon the cash limits of my right hon. and learned Friend the Home Secretary. From experience I know that when his cash limits are pressed, police manpower often suffers. There are now 1,200 fewer police officers in post than there were a year ago. At the end of a year in which we had the miners' strike and at the end of a period during which all police establishments increased from the appalling levels that were left by the previous Labour Administration, police manpower establishments have rightly rapidly increased. Yet largely because of rate capping and partly because of the additional costs being incurred at the centre, actual police manpower levels are falling. We were not elected to achieve that.
All these proposals involve additional cost. I am anxious that it should not be taken from the police manpower budget. I make that appeal to the Chancellor on behalf of my right hon. and learned Friends the Home Secretary and the Attorney-General. If as a result of these important new measures the cash limits imposed upon the Home Office need to be expanded, let them be expanded. Let not the costs be taken from the police manpower levels. 178 I welcome the Bill. It will remove burdens from the police. It will separate the investigation and apprehension of criminals from the prosecution of offences. The Bill deserves to be passed, but there are some consequences that need to be thought about carefully.
§ Mr. Robert Maclennan (Caithness and Sutherland)
The hon. Member for Bury St. Edmunds (Mr. Griffiths) began by pointing out that he was the only non-lawyer to have spoken. He played on the value of his contribution because of that. I noticed that he slightly resiled from that position when it came to the matter of serving on the Committee. The hon. Gentleman's point of view is important. I must confess to being a lawyer but one with no professional knowledge of the practice of criminal law in England and Scotland.
As a Scot representing a Scottish constituency, however, I have considerable knowledge of the workings of an independent prosecution service. Some of the fears expressed about it when the idea was first mooted for England and Wales by Justice as long ago as 1970 were somewhat misplaced. The fears expressed by the right hon. and learned Member for Warrington, South (Mr Carlisle) about the risk that a national prosecution service would lead to a national police force were completely misplaced. No centralisation of the police force in Scotland has flowed from the existence of a national prosecution service.
I welcome the Bill's purpose and the establishment of an independent prosecution service, as do my right hon. and hon. Friends in the Social Democratic and Labour parties.
§ Mr. Maclennan
I do not know about the Social Democratic and Labour party. As the Bill does not touch the other side of the St. George's channel, its views are understandably not being expressed in the debate.
I welcome the Bill because I believe that it will ensure that the legal processes involved in prosecuting offenders are separated from those who are responsible for investigating crime. The arguments put forward by the Philips Commission on that point were compelling.
The Government were right to opt for a national rather than a local service primarily because that will ensure uniformity of practice throughout the country, and less because I believe that undue influence would be exercised upon a local service. I wholly support a decentralised police force—I am completely opposed to a national police force—but it has been disgracefully subject to local political pressure, notably by some irresponsible Labour-controlled local authorities or Labour-dominated police authorities, and at no time more than during the miners' strike.
The reason for supporting a national independent prosecuting service is that we wish to ensure high and uniform standards of conduct. I welcome the assurance given by the Lord Chancellor that the same rules of professional conduct will be required and expected of those in the service as of those in private practice. It is important to establish clearly in the public mind that the new service is not an extension of the Civil Service but a legal service wholly separated from the Administration.
In the light of the remarks of the right hon. and learned Member for Warrington, South, it must be said that the 179 separation of powers in this country is much less than Montesquieu described. There is some benefit in the legislature having a link with the judiciary, as the right hon. and learned Gentleman illustrated with his experience as a recorder. It was of considerable benefit to the House to hear views expressed by someone who has had to act in a judicial capacity. I would not, therefore, argue to the limit for the separation of powers.
I echo the concern expressed by the right hon. and learned Member for Warrington, South about the possible impact of clause 4 of the Bill. I hope that the Solicitor-General will have something to say about the concern that the clause may give rise to Treasury pressure to reduce expenditure on the use of independent barristers for prosecuting work. Like the right hon. and learned Gentleman, I take the view that that would he a wholly retrograde and undesirable consequence. I hope that our anxiety can be set at rest.
The broad framework of the Bill seems to me to be right. I do not offer the kind of grudging support to the principles of the Bill that was offered by the right hon. and learned Member for Aberavon (Mr. Morris) on behalf of the Labour party. He seemed to be saying that he agreed with the Bill but, because he was speaking for the Opposition, had to find reasons for refraining from giving it his benison. That is the kind of unconstructive opposition that leads to frivolous suggestions.
One frivolous suggestion that the right hon. and learned Gentleman made was that as a result of a provision of the Bill a statutory inquiry should be established in five years' time. Apart from any other consideration, it would be quite ridiculous to place the shadow of such an inquiry on those seeking to operate the independent service. Secondly if such an inquiry were to be required by law—which seemed to be what the right hon. and learned Member was suggesting—it would be likely to freeze the practice during the next five years, when a flexible approach to the administration of the independent service is needed so that as problems arise they can be corrected, if necessary by administrative action, and not be put into some kind of capacious bag to be looked at when the statutory inquiry is set up.
The broad framework is, I think, right, although I accept what has been said about costs. Like the hon. Member for Bury St. Edmunds, however, I do not believe that the costs argument should have weighed against the introduction of the independent service. I believe that the Government, at an earlier stage in their life, were wrong when Lord Whitelaw refused to contemplate this on the ground of cost.
I turn now to a number of matters of detail on which some concern has been expressed. The first relates to the provisions on the setting of fees and expenses and, in particular, the setting of fees for counsel. I do not understand why the Bill proposes that the Attorney-General should settle the fees of prosecuting counsel by regulation. It would be infinitely preferable that it should remain a function of the Lord Chancellor to fix the level of fees for prosecuting counsel as he does for defence counsel. Indeed, prosecuting counsel should have a right of appeal to the taxing master.
This is not a pettifogging issue; I believe it to be a matter of some importance from the point of view of principle. The principle is that those who appear before a court ought to be represented by the best advocate available and should not be in any different position 180 because there are different scales of fees for counsel prosecuting and for counsel defending. Perhaps I have not expressed that as clearly as I might. It is important that both sides in a case should be similarly remunerated for their effort. Furthermore, if we move down the track proposed in the Bill there is some reasonable expectation that it will disturb what has been called the "cab-rank rule". I hope that the Government will consider that point, because I cannot see that there are any advantages in what the Bill proposes.
Similar considerations apply with regard to witnesses' costs and expenses. In the Bill there is a certain confusion about this because under clause 19(3) the Lord Chancellor appears to have the power to regulate witnesses' expenses, but under clause 14 the Attorney-General seems to have the same power. That is perhaps a point that could he better dealt with in Committee.
On another important point of detail I should be grateful if the Solicitor-General would say why the Government have made the proposal that prosecution costs should he payable to private prosecutors only in the case of indictable offences. As I read the Bill, that is likely to put at risk the possibility of prosecutions for summary offences being initiated privately by important bodies such as the National Society for the Prevention of Cruelty to Children or the Royal Society for the Prevention of Cruelty to Animals. Although such prosecutions are rare, the costs of them should be reimbursable out of public funds, as is the case with indictable offences. I hope that that matter can also be looked at.
Another issue central to this debate, and about which I intervened in the Home Secretary's speech, is the question of the extensive powers to set time limits—a principle with which I am in full-hearted accord. I reiterate the point that I endeavoured to make in my intervention, but with greater clarity. I do not object to the concept of setting time limits, but this is a responsibility which ought to rest not with the Secretary of State but with the Lord Chancellor, who has the power under section 77 of the Supreme Court Act 1981 to set the minimum and maximum periods which may elapse between a person's committal for trial and the beginning of the trial in the Crown court.
It seems odd that the Lord Chancellor, who is responsible for the administration of justice, including the efficient management of the courts, and for the allocation of resources as between courts so as to ensure the maximum efficiency of the court service, should not have this particular power in respect of time limits. If we are to have a properly administered criminal court service, it is desirable that the Lord Chancellor should have that responsibility and, indeed, that all aspects of the administration of criminal justice should effectively be in the hands of a single department. It is known that many Social Democrats and Liberals favour the concept of the establishment of a ministry of justice, which would of course bring about that end. I regret the splitting of responsibility in what is now clause 22.
I turn now to the old clause 22, although only briefly because, like other hon. Members who have spoken, I welcome its demise. The proposal that the Court of Appeal should give advice on sentencing policy on a reference from the Attorney-General in respect of a particular case seems to me to show peculiar insensitivity to our legal traditions. It would be a highly unsatisfactory way of attempting to answer the perfectly legitimate question how 181 best to ensure that the views of Parliament — and it really is ultimately Parliament's responsibility — about the appropriate sentences for particular offences are translated into effective decisions by the courts.
The Government's original proposal had few friends. I suspect that it was a gesture, but it was a misconceived gesture. I do not think that the Home Secretary, in his remarks upon the future of this principle, gave the commitment that the hon. Member for Bury St. Edmunds seemed to think he had given. It was not my understanding that he had undertaken to introduce any such proposal in the future Criminal Justice Bill or, indeed, in any legislation. He simply reminded the House that there was such a Bill in the pipeline and that he had an open mind. I think that that is a graceful way of backing down, and is certainly not to be taken as an attempt to reintroduce a wholly unacceptable proposal. I would prefer to give the Home Secretary the benefit of the doubt on that issue. [HON. MEMBERS: "Hear, hear."] I am glad that other hon. Members in the Conservative party take the same lenient view.
The Bill is not devised for the benefit of lawyers, although lawyers appear to have dominated the debate. The Bill is devised for the better administration of criminal justice. I believe, on the basis of the experience that we have had in Scotland of an independent prosecution service over a long time, that it will be as successful in England and Wales as it has been generally in Scotland.
I should like to refer to a point of detail in the remarks of the hon. Member for Bury St. Edmunds about the police. I was not aware of his point about minor criminal offences, but it is my understanding that in Scotland at least, if there is any element of criminality in an allegation against the police, the matter is referred by the chief constable to the procurator fiscal. If the hon. Member for Bury St. Edmunds is right, it would be wise to look at the Scottish experience, which has not given rise to great difficulties. It seems to be a suitable protection for the police.
§ Mr. Eldon Griffiths
I am not only right, but the matter has now been enshrined in the statute of the Police and Criminal Evidence Act, in that a chief officer will now be able to determine, at his discretion, whether a criminal charge against a police officer is a major one, in which case it must go to the Director of Public Prosecutions, analogously with the procurator fiscal, or whether it is a minor matter, in which case he will deal with it through discipline procedures. It is that mischief to which I object.
§ Mr. Maclennan
I was not referring to the provisions of the Police and Criminal Evidence Act described by the hon. Gentleman, which I accept. I was questioning whether the position would remain the same after the passage of the Bill that is now before us. It seemed to me that it might have the effect of repealing that provision. It would be extremely helpful if the Solicitor-General were to address himself to that question. I turned away from the conclusion of my speech because I was interested in what the hon. Gentleman had to say. I, like him, am concerned that the police should not be singled out for especially unfavourable treatment under the Bill.
This is a good Bill, and I have no hesitation in saying so from an Opposition Bench. Whoever said earlier that 182 this was not a partisan matter struck the right note. Unfortunately, it was not said by the spokesman for the Labour party.
§ Mr. Ivan Lawrence (Burton)
The Government are rightly doing something more about law and order. They are making the prosecution of the offender more effective. New powers were given to the police by the Police and Criminal Evidence Act, but since we live in an age in which the individual is considered to be more important than he probably ever has been before, there must be a balance of his rights against the increased rights of the state. That is why an independent prosecution service separating the power of investigating offences from the power of prosecuting offenders is such an important and welcome element in that balance.
So far, so good. The Government are introducing an independent prosecution service, and that is what everybody wants to see. Unfortunately, they then proceed to go wrong. We could have had a national service or a local service. If national, we could have had it centrally directed or locally directed, or we could have had a local service with nationally directed features. There are strong reasons for having a national service, but there are also strong reasons for not having it centrally directed, yet the Government have fallen hook, line and sinker for a nationally, centrally controlled system. They have swallowed the bait prepared for them by the Civil Service, and they are making us look a bit silly about it.
In whose interest is it always to have a centralised control system of anything, with a large, expanding bureaucracy? Why, the Civil Service. Which party is it which has as its principle the decentralisation of control rather than its centralisation, and the reduction of bureaucracy rather than its expansion? Why, the Conservative party — this Government's party. So I come quickly to the first reason why I am unhappy about the Bill. It runs counter to what I, as a Conservative, stand for—the minimum of centralisation and the maximum of decentralisation.
Of course, there might be no alternative to doing an un-Conservative thing if reform and improvement are to take place, but that is not the position here, because the Philips Royal Commission report on criminal procedure produced a sensible alternative—a national system which was not centrally directed but was locally based and directed. Therefore, my second reason for dissatisfaction with the Bill is that it specifically rejects what I regard as the much more sensible approach of the Royal Commission, which stated in paragraph 7.24:a centrally directed national prosecution system for England and Wales is neither desirable nor necessary".Secondly, in paragraph 7.27, the report stated:the most practical solution and the one that is likely to offer the best means of achieving local accountability is to work upon the basis of existing police authority areas with a modified form of supervisory authority.Let us consider what centralisation is likely to lead to. First, to centralise, one needs a large national organisation. A small national organisation will not do. It never has done for anything that is under central control, because one will need monitors to see how the system is working out in the sticks, one will need people to come and go, reporting on how the matter is working, and one will need supervisors— nsot just typists, and not just minor functionaries, but people who are in control and 183 able to supervise. They will all add to the burden of large central organisational control and, therefore, to costs. Will this be the first time that costs will have been accurately forecast by Ministers speaking from the Front Bench, or will the costs be considerably greater?
The Conservative Government are fulfilling all their manifesto pledges by decentralising every nationalised industry known to man, and God bless them in their efforts. Why? One reason, we are told night and day—I agree with the reason — is that centralised control is always more expensive. If matters are allowed to proceed in their normal evolutionary way in local areas through local systems, which have an independent element because that is what this is about, the system will be much more cost efficient. We advance that argument in every other case, but miraculously that is the reverse of our arguments today. My right hon. and learned Friend assures us that the costs are limited and will be as stated in the Bill.
Secondly, the measure is not likely to strengthen the morale of solicitors, because solicitors who have locally based organisations which are performing well and efficiently will feel threatened. Along will come a nationalised, centralised organisation and solicitors, already destabilised by the measures which the House is taking about conveyancing, will feel edgy.
Nor, thirdly, is the measure likely to strengthen the morale of the young Bar. Several hon. Members have referred to it. The young Bar are barristers who have just qualified and who are beginning their careers at the Bar. They do a fair amount of local prosecution work, and their confidence, expertise and morale grow according to the work that they perform. However, they are like everyone else and wish to earn a living and to have a job. Obviously there will be work for the young Bar under the system, but it will not be as members of the young Bar. Increasingly they will be tempted into the more bureaucratic process —the safe life with holidays with pay, pensions and all that goes with being a civil servant working for the state boss. That is one of the serious features which we can consider, but not prove, might result from this over-centralisation.
When we remove young barristers, we dry up the process by which the independent Bar is sustained. It will not be long before that source of entry to the Bar slows down. That, together with the other features of the Bill, which will inevitably give to solicitors the right of audience in places where they do not now have such a right, means that it will not be long before the independence of the Bar begins to be swallowed up in this general centralising process, which has been the dream of civil servants for many years.
§ Mr. Eldon Griffiths
I do not disagree with all of my hon. and learned Friend's points. However, before he leaves the House collectively to burst into tears over the appalling prospects of the impoverishment and demoralisation of the legal profession and over impecunious solicitors and barefoot young banisters, how can he claim that that will be so when the measure will remove 600 police officers from their duties as prosecutors and increase the number of prosecuting lawyers by 400?
§ Mr. Lawrence
If the measure increases the number of lawyers prosecuting, it will increase them only if there are more cases. There will be more cases only if there are more police officers arresting people committing crimes. 184 I hope that that will be the case, but it has not happened hitherto, and we cannot be certain that it will happen in future. If more lawyers are employed that will be good, provided that they are not employed by the state service. My hon. Friend is entitled to make light of my attitude to this matter, but the independence of the Bar is precious. It does not just happen, and it will not continue The professions will become fused, and solicitors will appear for clients with whom they have a personal friendship. That is what happens in the United States, where the professions are fused. The independence of the Bar arid the purity of our legal system will be undermined when that system takes over. We must guard against that.
There are signs in the Bill that that may happen Not only I, but the young Bar and the Bar associations think that. Therefore, every hon. Member, whether he thinks highly or otherwise of the legal profession, should be worried about that and be careful lest we introduce a measure which speeds up the fusion of the professions and dilutes that especially important aspect—the independence of the Bar and the cab-rank principle, to which the hon. Member for Caithness and Sutherland (Mr. Maclennan) referred.
§ Mr. Maclennan
Are not the hon. and learned Gentleman's fears somewhat exaggerated in the light of our experience in Scotland, where an independent service has existed for many years and where there is no move towards the fusion of the two sides of the profession?
§ Mr. Lawrence
Experience of law and order matters in Scotland never ceases to amaze me. There must be a secret reason why everything seems to work just right in Scotland. I am happy that it does, and I hope that my right hon. and learned Friend will soon adopt from Scotland the flexibility of licensing hours, which has brought about a reduction in the amount of violence and crime contrary to expectation. We have much to learn from Scotland. I hope that the hon. Gentleman is right and that my fears are exaggerated. I hope that I am wrong and that my fears do not come about, although the Bill makes it more likely that they will occur. Afterwards, it is too late to start worrying.
The right hon. and learned Member for Aberavon (Mr. Morris) said that this was not a privatising measure. He is right. It is a nationalising measure, and a Socialist measure. As such, it was rejected by the moderate right hon. and learned Gentleman, who seemed to despise its Socialist nature when he spoke against it. It is a state employee's measure.
Fourthly, there will be a centralising function to the usual Crown prosecutors. At the Bar, those who must pass on the work of local prosecutions will tend to use their usual people—the usual Crown prosecutors—unless someone says, "Spin the work around. Give it to someone else. Make sure that everyone has an opportunity of doing this kind of work." The cab-rank system will be less likely to operate. That is directly contrary to the views expressed by my right hon. and learned Friend the Attorney-General in relation to Treasury Counsel prosecuting in the Central Criminal Court. In that context, he has said that we should spin the wheel so that Treasury Counsel does not automatically carry out that function and members of the criminal Bar generally can take part, perhaps leading to a fresher, shorter and more efficient use of resources than the system into which we have slipped. I wonder what my right hon. and learned Friend thinks of the reversal of that in the Bill.
185 For those general reasons, centralisation of this kind is likely to be dangerous. Is it really wise to reject the views of 14 of the 15 members of the Royal Commission, who regarded the scheme as undesirable and unnecessary?
My third reason for unhappiness about the Bill is that it will more readily lend itself to politically motivated direction. Strangely, the Government make the opposite point. They say that as there is politically motivated direction in county councils the matter should be centralised so that it does not happen. That may be true when many county councils are under Labour control and some are seeking to lean on local police forces in relation to miners and others while the central Government, under Conservative control, are pure and behave perfectly properly, taking no part in the judicial process.
Let us consider, however, the situation that might arise if a Government were formed by the right hon. Member for Chesterfield (Mr. Benn), a gentleman who has been in government in the past and who sees nothing wrong in pickets getting carried away to the point of violence when acting in the cause of the working man's right to employment in the pits. Is it far-fetched to suggest that a Government under the control of such a person might make an edict that there should be no prosecution of pickets in those circumstances? Something very similar certainly occurred when a far more moderate Labour Government reversed all the processes of legal morality by granting amnesty to the Clay Cross councillors. Moderate men and reasonable lawyers took the view that that was in order. One has only to look a step further to the eventuality — unlikely, one hopes — of a politically motivated power applying its Left-wing principles to a national prosecution service.
My fourth concern is that the logic of a national prosecution service may lead to a national police force. Once there is a national prosecution service, it would be so much more convenient for it to relate directly to a national police force than to a large number of local forces under county council control which might take decisions unhelpful to central prosecution policy. At present, local police forces work well and have a close democratic connection with local people, but they could easily be swept aside in the interests of centralised efficiency. The present system of local prosecutions, made independent of the police, would serve perfectly well. If change is needed, it should be based on the existing system. We Conservatives believe that all change should be evolutionary, not revolutionary, but the Bill proposes a revolutionary process—a centralised, Socialist process.
I am sorry that I could not be friendlier to part I of the Bill, but I am about to be even more unfriendly to another aspect of our deliberations. An astonishing feature of our debates has been the posture adopted and maintained with surprising tenacity towards the introduction of what is essentially a charade, a plaything and a spoof—the old clause 22, which may come back in a new guise in a new Bill. We are told that the Government have not forgotten it and that they are very much persuaded by the strength of the argument, but that there is no need to hold this Bill up in the meantime.
Who is persuaded? No one who has listened to the arguments has been persuaded, apart from my hon. and learned Friend the Solicitor-General and his colleagues. Those of us who practise at the Bar and who know the 186 views of members of the Bar and of judges cannot but be astonished at the deafening silence of the Lord Chief Justice on this, although we were told that he was the originator of the scheme. I do not believe that he was even present when the matter was debated in the House of Lords, probably because it would have been inconvenient to have everyone turning to him and asking, "What do you think about this, Geoffrey?" I do not believe that the Lord Chief Justice thinks much of it at all.
It is suggested that the Court of Appeal should solemnly gather at 10.30 o'clock in the forenoon in the Lord Chief Justice's court and pretend to consider the evidence in a case referred to it by the Attorney-General, with only a transcript of the evidence, and no knowledge of the demeanour of the witnesses, and then deliver a pretend sentence, without any power to change the original sentence, and without having spent days on the case as the trial judge did. In other words, it would simply state that in a similar type of case, in similar circumstances, a defendant with a similar past might appropriately have received such and such a sentence. The prospect of a charade of that nature being undertaken with equanimity by Her Majesty's senior judges should be enough to raise substantial doubts about the whole idea.
It would be a different matter if the judges involved could change the sentence, if they could try the person again without having seen the demeanour of the witnesses and without the knowledge that the jury had. There might be some sense in that, although not much. The public would be able to make known their view that a pat on the head and tuppence out of the poor box was an inadequate sentence for someone who had raped four women, and that 25 years would be more appropriate. However, for the public to be told that the man would have been given a sentence of 25 years if he had appeared before those judges, but that nothing has been done because the judges are not empowered to give an additional sentence, will not cause a very loud sigh of relief. Is it likely that the public will say, "It is good that we have gone through' this charade. We feel much better about the case"?
§ Mr. Maclennan
What about the converse position? It might be that a man who was to languish in gaol for 25 years should languish for only 15 years.
§ Mr. Lawrence
It is unlikely that in those circumstances the Attorney-General would refer the matter to the Court of Appeal, because the counsel of the man who had received the savage sentence would appeal in the normal way. The process is meant to apply only to sentences thought to be inadequate. There is now no right to appeal against the inadequacy of a sentence.
§ Mr. Ashby
Do not the same objections apply when there is an appeal against sentence? The courts do not see witnesses. They hear arguments and read the transcript. Surely the better point is the double jeopardy point. It is a cornerstone of British justice that people should not be put in jeopardy twice.
§ Mr. Lawrence
The double jeopardy point is a good one, but as the Court of Appeal has no power to increase the sentence there can be no objection to the matter being considered again by a tribunal which has not seen witnesses. The worst that can happen is that the tribunal will say that the judge before whom the case came initially knew best and that his sentence is not to be disturbed. 187 However, the double jeopardy point is important, and it was brushed aside in a cavalier fashion by my right hon. and learned Friend.
Happily, the appeal measure is no longer part of the present Bill. However, to say that it will increase public confidence is no answer to the criticisms. The public will be shocked by the realisation that the tribunal can do nothing and that the measure involves no change. In that case, why not leave things as they are? At present, the Lord Chief Justice comes down like a ton of bricks in any case where there has been a patently absurd sentence. He asks the judge for an explanation. If the explanation is acceptable, nothing more is heard. If it is not, the Lord Chief Justice issues a guideline to the effect that in such cases it should seldom, if ever, be the rule that there should not be a sentence of imprisonment, for two, three or four years. Such guidelines have been issued in drug-peddling cases and others, and they have been most effective. Thenceforward, the judges, who have to keep in touch with practice directions from the Lord Chief Justice, have known that in certain circumstances the convicted man should go to prison for, say, a minimum of two years.
The proposal has a third dangerous aspect. The Attorney-General is to refer the matter to the Court of Appeal. Where does the Attorney-General appear? He appears in this place. If the Attorney-General were given power to refer sentences to the Court of Appeal, his question time would consist of questions from a long list of interested hon. Members about why the case of Bloggs, James, Smith or Brown had not yet been referred to the Court of Appeal—or the play-games committee. His life would be a misery. Nothing would be achieved, except that our local papers would note the fact that the hon. and learned Member for Burton, for instance, had raised in the House the case of Bloggs and Bloggs and that the Attorney-General had stated that he had decided not to refer the case to the Court of Appeal. If he were to refer every such case to the Court of Appeal, the court would have to sit night and day, and that play-games court would become an interesting sideshow for foreign tourists. Nowhere else in the world would such an absurd situation exist, and the respect which we are led to believe the rest of the world has for our system of law and order would quickly evaporate.
The whole idea is nonsense. My right hon. and learned Friend has been warned that it is nonsense by all the members of the Bar, all the solicitors and all the judges. For all that I know, the Lord Chief Justice may have warned him too. I ask my hon. and learned Friend the Solicitor-General to pass on to my right hon. and learned Friend the Attorney-General the request that he should not be so stubborn. Either the Government will have to eat humble pie, or we will look extremely stupid.
I have three nice words for the Government. First, there is the implementation of the section 48 pledges for the pilot scheme, as a result of which statements for the prosecution are served upon the defence in the magistrates court. That is superb. In the pilot areas, the scheme has resulted in a large number of pleas of guilty. The sooner the scheme is implemented nationwide, the sooner there will a massive saving of time in our courts. Trials will be processed more speedily, there will be less likelihood that witnesses will forget their evidence, and there will be more opportunity for justice to be done. I give the Government 100 per cent. approval on that point.
188 Secondly, the Bill contains an enabling power to set a time limit on prosecutions. It is as unsatisfactory as all enabling powers and, because it is so vague, more unsatifactory than most. However, it is time that the Government had power to put a time limit on prosecutions. In cases where they were getting a little slow and behindhand, nothing would do more than such a rule to spur the police on to get their tackle in order. Such a rule is long overdue.
Thirdly, I welcome the rationalisation and clarification of the question of costs in criminal cases, though I do not entirely understand why it is necessary. I thought that many of these provisions already existed. If not, I welcome them. Costs in criminal cases are an important factor which is too easily overlooked.
I have three hopes: first, that there will not be a vote tonight, because if there is my personal position will be a little difficult; secondly, that my fears about the Bill will not materialise; and, thirdly, that I shall not be invited to serve on the Standing Committee.
§ Mr. John Ryman (Blyth Valley)
I am delighted that the hon. and learned Member for Burton (Mr. Lawrence) has not repeated his marathon performance of a previous debate. I feared at one point that he might. His speech was amusing if irrelevant. Perhaps I might make some serious observations about the Bill in just a few minutes.
I am surprised and sorry that a political and partisan element has been injected into the debate by some hon. Members. This subject has nothing to do with party politics. Hon. Members should be more sensible and treat the subject seriously. I am also surprised and disappointed that a great deal of time has been wasted on discussing a clause that is not in the Bill—what profit is there in that— rather than those that are and the many practical problems that will arise from the establishment of an independent prosecution service.
I believe that the standard of prosecuting services in Britain, with few exceptions, is extremely high. The quality of staff in the counties and office of the Director of Public Prosecutions and that of the solicitor for the Metropolitan police is high. It is important to maintain the high standard. It was not always thus. The House will know that the standard used to be abysmally low in some parts of the country. We all know where they were The present high standards are getting higher and the first aim of the Bill should be to set up a department that insists on extremely high professional and ethical standards.
The task of prosecution is to bring the facts of the case to the court, and to do so efficiently and as speedily as possible with fairness and clarity. The tradition established by the DPP is good in regard to general policy. The weakness of the Director's department is that, because of the overwhelming volume of work and the shortage of personnel, cases sometimes do not receive the attention that they ought to receive at each stage. The new service will have many growing problems in attracting sufficient able, experienced and expert staff to enable it to be run efficiently and fairly. The lead must come from the top. Ability, fairness and high ethical standards permeate throughout a department from the top. The ever-open door at the director's department and at the solicitor for the Metropolitan police's department is healthy. Everyone can consult somebody with years of experience. That tradition is valuable and should be maintained.
189 When the new service is established, the director will have a huge department within which will be merged all of the county prosecuting solicitors' departments and the department of the solicitor for the Metropolitan police, which I suggest merits separate consideration. There will be immense problems. The Solicitor-General and the Home Secretary have been good enough to listen to my representations in private. I know that there is considerable anxiety among experienced, highly competent and conscientious staff in county prosecuting solicitors' departments and the department of the solicitor for the Metropolitan police about what will happen when the new service is set up. It is essential that the standards are high. The learning and experience gathered over many years should not be dissipated or lost.
The Home Secretary has told us that the final edition of the management consultants' report has not yet been delivered. However, we have had interim editions, day in, day out, and a chance to examine them. It is clear from the comments of prosecuting solicitors' departments throughout the country that the management consultants have not investigated the practical problems fully enough. The report has been a lengthy process. I do not doubt that it has been conducted objectively and fairly, but it wholly lacks realism in many respects. I shall not trouble the House with a list of examples, but the report suggests that 10 minutes be allocated to a member of the new department checking an indictment. That statistic was produced after a great deal of research, but it is wholly unrealistic. I defy anyone to check an indictment in 10 minutes. It is physically impossible, even if the person concerned has a background knowledge of the case and has familiarised himself with the statements in the case. No doubt such practical details can be sorted out later.
I have been interested in these matters for some time. The Royal Commission report was published some two years ago. The Solicitor-General was a Minister of State, Home Office when I had an Adjournment debate—at about 2 am—on the criminal justice report, to which the hon. and learned Gentleman kindly replied. I have had much time to consider these matters and I have had much help in that from members of the present Government and the previous one. There is little to quarrel with in the Bill, but I am worried about the practical implications of setting up the prosecution service. If the management consultants' recommendations are followed too precisely and various concessions are not made, the quality of the new service might suffer. It is most important that that does not happen.
Will the Solicitor-General give us the Government's reaction to the establishment of the new service, especially on staffing? We are not asking for any guarantees or undertakings, but it is most important that those who work in county prosecuting solicitors' departments, the Director's office and the department of the solicitor for the Metropolitan police know much more precisely what their professional future is to be. This is a matter not simply of money, although money is relevant, but of status, service and career prospects.
I suggest that London is quite different from the provinces in these matters. The biggest prosecuting department outside London is Greater Manchester, with about 6,000 indictment cases a year. The figure in London is about 18,000, three times as high. London is different 190 from the rest of the country for two reasons: first, because of the volume of work, and, secondly, much more so because of the large number of Crown courts. In the Thames valley area, which covers three police forces, there are six or seven Crown courts. There are many Crown court complexes in London that have within them six or seven courts. That is why London is completely different and merits different consideration. I understand that the proposal is to have three separate areas in London, each with its own officials and administration to administer what is now the Metropolitan police area of London. There will be serious problems, which the Government should consider, in dealing with the new department in regard to London.
I shall give the Minister only one example. The tradition in London, unlike many areas outside, is that at the Crown court there is a large number of staff from the department of the solicitor for the Metropolitan police who oversee a case from committal to trial. Experienced, qualified, competent and conscientious staff prepare the papers, see the officers, prepare the notice of additional evidence and so on. That is not the practice in the country where all sorts of variations take place. Sometimes the papers are prepared in a solicitor's office miles away from the court and there is no contact between the court and the solicitor's office unless a telephone call is made. The same applies to the office of the Director of Public Prosecutions, where the people who are sent to court at the moment have not got the authority to make decisions. If instructions are required on a particular point, a telephone call has to be made to the professional officer in the director's office.
The purpose of the Bill is to change that principle. The proposal is that a qualified lawyer should see the papers at an early stage so that he may advise as to the formulation of charges; he will be able to advise the officer in charge of the case what witnesses are required, what additional statements should be taken and what further inquiries should be conducted. That is one of the biggest changes that the Bill makes.
That change should not interfere in any way with the present system, which is completely satisfactory, whereby experienced and qualified people see the case through from the date of committal. In the Metropolitan police area at every Crown court there are highly qualified and experienced staff who deal with these matters. I got the impression from the report of the management consultants that they did not appreciate that the system in London was different from the system in many other parts of the country, although I have been reassured on this point recently by officials from the Law Officers Department and the Home Office.
I hope the Solicitor-General will reassure me and others who are interested in the topic as to the future of staff in the department in London. They do not want to become bureaucrats and administrators. They are lawyers and they want to remain as lawyers, using their expertise as lawyers in the new department. It is most important that their skill and experience should be retained. Things will be difficult enough. The new department should not risk losing people who have spent years learning their trade and getting experience. I know the Solicitor-General is sympathetic in considering the anxieties that I have expressed on this point.
We want the new prosecuting service to succeed, but it will not succeed unless those who have spent their working lives in the service of the public in the prosecuting 191 solicitors' departments, in the director's department, and in the Metropolitan police solicitor's department can look forward to a worthwhile and satisfying career in the new department.
It is a complete waste of time to concentrate in this debate on topics that are remote from the direct ambit of the Bill, but are to do with criminal justice generally. Discussion about leniency of sentences, the sentencing power of the courts, rights of appeal and so on is wholly irrelevant.
I should like to clear up a point about an intervention that I made in the Home Secretary's speech. I asked him whether it would not be a good idea for power to increase sentences to be given to the criminal division of the Court of Appeal. He misunderstood my intervention. It was not about the clause that was rejected by another place. It was a completely different point. To discourage frivolous appeals, would it not be a good idea for the Court of Appeal criminal division to have the power, which would no doubt be used sparingly, to increase a sentence if an application for leave to appeal against the sentence disclosed that the original sentence had been manifestly too lenient?
§ Mr. Ryman
Ironically the legal position is that Crown courts can, on appeal against sentence, increase the sentence, although I have only once come across a case where that happened. It is wholly anomalous that a Crown court should have the power to increase a sentence if there is an appeal against sentence and the Court of Appeal criminal division should not have the same power. Both should have it, or neither should have it.
§ Mr. Hind
The hon. Gentleman has already made the point that I wished to make. It is that this anomaly exists between the appellate jurisdiction of a Crown court to increase sentences and the Court of Appeal, which does not have such a power. The Court of Appeal tends to rely on the system of deleting remission for a prisoner who pursues his appeal too far. If the system was changed, as the hon. Gentleman has suggested, frivolous appeals would be avoided and any advantages within the rules of the prison system that an individual would gain during the period running up to appeal would be lost. I agree fully with the hon. Gentleman.
§ Mr. Ryman
I am delighted that somebody agrees with me about something. The point was made earlier that I do not slavishly follow my party into the Division Lobby. Perhaps not, but I always support the Labour party except on the occasions when I do not. It would be far better if hon. Members did not adhere rigidly to party political doctrine. I was appalled by the speech of the hon. and learned Member for Burton (Mr. Lawrence) which was crude and doctrinaire. It is far better to judge these matters on their merits. On the merits this Bill will do a great deal to make the prosecution service successful, with a highly professional and ethical standard, a high degree of confidence and efficiency and a high quality of staff within it.
The cost of this Bill has been glossed over by every hon. Member who has spoken today, by the Home Secretary and in all the commentary about the Bill that I read before coming to the debate. The cost of the establishment of the service must be enormous. I have 192 heard the figure of £5 million mentioned, but that is absurdly low. The cost will not be anything like as little as that. Before a single salary is paid, a single piece of office equipment is bought or any of the additional new staff are taken on, the Bill enjoins the service to have new offices, which must not be within the courtroom precincts. There is a specific provision in the Bill for local authorities, but many of them may find it financially impossible. Both Crown and magistrates' courts will have to provide new buildings to house the new department.
The cost of all this will be astronomical and I hope that the Law Officers and the Home Secretary will join in twisting the arm of the Chancellor of the Exchequer. In a Government who are committed to reducing expenditure, we shall have the unusual spectacle of the Law Officers' department and the Home Office greatly increasing public expenditure. If this service is to succeed, a lot of money will have to be spent.
If the standard is to be high, we have to pay the lawyers properly. Those starting the new department should not he just the failures from the Temple. If we are to attract high quality lawyers from both sides of the profession, and high quality clerks, they must be given decent salaries. I do not mean astronomical salaries, but realistically attractive salaries to attract men and women of the right type. That will cost a great deal of money.
The Government will have to come clean sooner or later about the estimated cost figures, even if the negotiations with the Treasury are not completed. I understand that some of these posts have already been advertised, but the Bill has not gone through the House and therefore is not law. I am told that in Hertfordshire, for example, advertisements are appearing for posts in the new prosecuting service. Similar advertisements are appearing in the press and other local legal publications elsewhere. Perhaps the Solicitor-General can help me on this point. How can those advertisements appear advertising posts at certain salaries if the legislation has not gone through the House and if negotiations with the Treasury have not been completed? How can money be earmarked for salaries? It is all very well to anticipate events, but unusual things happen in the course of legislation.
I emphasise that the people setting up the department will have to be paid handsome salaries. There must be no stinting or we shall not get the right quality of people. Perhaps these are Committee points, which can be dealt with later, but I should like the Solicitor-General to answer them.
§ Mr. David Ashby (Leicestershire, North-West)
I suspect that the hon. Member for Blyth Valley (Mr. Ryman) will be reminded time and again about his remarks on party politics. I agree with much of what he said about the prosecution, but he was a little unfair on my hon. and learned Friend the Member for Burton (Mr. Lawrence), who spoke before him. Like my hon. and learned Friend, I had some fears about the Bill. I thought that it was over-centralising the prosecution service, and I know that in Leicestershire, part of which I have the honour to represent, there were great fears.
However, since the Bill was first announced, we have had the White Paper "Proposed Crown Prosecution Service", which was published last December. Having read the paper carefully, all my fears were allayed. The service will be regionally organised—I suspect that we 193 shall have a Leicestershire prosecution service—and the cases which have traditionally been dealt with by the Director of Public Prosecutions will still be dealt with by him. Those cases which require a great deal of expertise, such as some of the fraud cases, will be dealt with by those parts of the department which have the expertise. There will be a saving and undoubtedly an improvement in the standard of prosecution.
I welcome the Bill in its broad outline. It became necessary following the Royal Commission's report and because of the wide variations in practice throughout the country. I wish that I had the strong belief of the hon. Member for Blyth Valley that the prosecution service is of a uniformally high standard. I do not think that it is. I think that it varies from the excellent to the indifferent. Arrangements for prosecuting also vary. Some counties, such as Hertfordshire, use independent solicitors entirely, and they are very good because there is good rapport between them and the police, and the work is spread around. I have not seen bad prosecutions in Hertfordshire. That is an example of the good rapport that there can be between the independent solicitors, of whom there are several, and the police.
In Surrey only one solicitor is used, and although he is in private practice he is virtually a police prosecutor. My knowledge is of the Metropolitan police solicitors, who are of the highest standards and the greatest objectivity. It is a service of some size and is able to attract people of the highest calibre. However, we cannot judge the rest of the country from the Metropolitan police solicitors alone. Smaller areas do not have the advantages of London.
Putting all these prosecutions under one department—the DPP—has attractions. Those attractions are there provided that the organisation is, as it will be, regional, and that the various needs of the area are taken into account. I agree with the hon. Member for Blyth Valley, who disappeared as soon as he spoke, that we shall require prosecutors of the highest calibre. It is, no good expecting to have the service that we require from people who have not succeeded within their own professions. Therefore, we shall need to pay people well to attract them into the top echelons of the service.
The advantage of a Second Reading debate is that one can talk about what is not in the Bill as well as about what is in it. There is one big omission from the Bill. The public generally think that all prosecutions for criminal offences are brought either by the police of by private individuals. The public are wrong.
The Home Secretary said that the reasons for the Bill included the need for an independent prosecution service, openness, accountability, consistency and the timely prosecution of offences. He emphasised the need for an independent prosecution service.
There are other prosecuting authorities apart from the police. The special investigations department of the Customs and Excise brings charges on the importation and possession of drugs, the importation and possession of obscene articles and the evasion of duties. Those are not difficult offences to prosecute. There is nothing specialised about Customs and Excise prosecutions. Similar cases are dealt with by the police. The same people defend them, and often the same banisters prosecute them. Yet the Customs and Excise has a vast prosecuting department, with any number of solicitors.
194 Are we looking for real savings and for a proper state prosecution service? If so, why is the Customs and Excise department excluded from the Bill? I can see no justification for its exclusion. I know why that has been done, and I know about the difficulties which the police and the Customs and Excise have in co-operating with each other. Perhaps there is some trading-off between the Customs and Excise prosecuting department and the police prosecuting department, but there can be no justification for the expense involved in maintaining two prosecuting authorities when one would do.
If we are to have independence, openness, accountability, consistency and the timely prosecution of offences, why are the Customs and Excise excluded? People go to prison for anything between six and 12 years for drug importation offences. They are serious offences. Why are the Customs and Excise excluded from the Bill?
What about the port police, who deal with offences in port areas? What about the transport police? Why are their prosecutions not to be conducted by the central prosecuting agency? I have not asked a parliamentary question about the number of police forces or prosecuting authorities in this country, but I know that there are very many of them. Why, for example, are prosecutions by the Atomic Energy Authority police not to be conducted by the independent prosecution service?
What about the Post Office, which prosecutes television licence offences? What about the vehicle licensing sections of the Department of the Environment? What about the regional traffic commissioners, who prosecute offences involving heavy lorries? What about the inspectorate of the Health and Safety Executive? What about the Inland Revenue?
I understand that the new authority will have a large department which will be highly specialised in fraud cases and will probably have available computers through which it can run figures and highlight where fraud is occuring. Why should the Inland Revenue maintain a separate prosecuting department with a vast supply of solicitors and other staff?
I see no reason why the new authority should not be a proper prosecuting authority using the guidelines set out by the Home Secretary. The independence that is so necessary should be open to all. If I were to be prosecuted for an Inland Revenue offence, I should like to have that independence, openness, accountability and consistency, though perhaps not the timely prosecution of the offence.
With all the fervour that I can produce I say that a coach and horses has been driven through the Bill and that it is not good enough to have a Bill which deals only with police prosecutions and not with prosecutions generally.
If we brought the Inland Revenue experts into the new prosecuting service—jobs will be protected under the commission—for the general prosecution of frauds, considerable savings would be achieved. The same would be true if we brought the Customs and Excise experts into general drug cases.
I share the doubts that have been expressed by hon. Members about the costings in the Bill. The way that we are heading is a very expensive way. However, if we used the many prosecuting departments for the nation in the new prosecution service we could achieve the suggested savings.
Unlike the hon. Member for Blyth Valley, who is still not in his place, I raise the vexed question of clause 22, which has been taken out of the Bill, without apology. The 195 Home Secretary threatened the reintroduction of the clause. I agree with the many hon. Members who have said that clause 22 should not form part of our criminal process. It was shallow, it was hollow. It meant nothing and would merely involve deciding which judge was to be bashed this week. The other place was right to throw it out.
I would never accept that the prosecution should have a right to appeal to the Court of Appeal for an increased sentence. The principle of double jeopardy is very important. It has been hallowed within our criminal law system not simply for five or 10 years, but has grown up over hundreds of years. It should not lightly be thrown away by anyone, and especially by the hon. Member for Blyth Valley. It is so easy to say that we should change the system, but there is a knock-on effect. If we undermine something that is so fundamental, that has an important effect on the whole process of criminal justice. It is something that we should preserve.
I welcome the provision on timing. I was a sponsor of a Bill presented by the hon. and learned Member for Montgomery (Mr. Carlile). The Bill did not get very far, but I am glad to note that its sentiments are echoed in this Bill. It is essential that justice should be speedy, because memories fade. There are delays on both sides, and they happen not only in the Crown courts but in the magistrates courts. We must ensure that undue delays do not happen. We must impress upon the judiciary that it must be evenhanded in this matter.
If the prosecution presents a notice of additional evidence at the last moment, that may delay a trial, because the defendant would have to make further investigations. Many trials have been delayed by the late service of such a notice. Where that happens and trials may be unnecessarily delayed, judges should be prepared to refuse to grant the submission of that evidence. Too often judges will say that they cannot stop the submission of that evidence, but that the defendant has the right to ask for two or three weeks to investigate the matter. There must be fairness on both sides.
I agree with my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) that these matters must be evenhanded. I do not believe that the delays necessarily arise in the way that has been expressed in the House. I welcome the fact that, in certain cases, the prosecution is now disclosing its evidence in advance. That could help to bring about speedy trials in magistrates courts. Cases often go to the Crown court because the magistrates court is unable to cope adequately with the volume of cases. Magistrates courts are often unable to cope with defended cases which may last for more than a day. Indeed, they do not seem able to cope with cases which may last for three or four hours.
All those who have practised in the courts have experience of attending a court when a particular day has been set aside for a case. On arrival, they find that the overnight charges will last until 11 am, the further remands will last until 1 pm, the case might then start at 2 pm, but at 3.30 pm the magistrates say, "Sorry, but we have a tea engagement and must finish early." The case is then deferred for perhaps two weeks, or even three months. That happens time and time again. Therefore, it is no small wonder that solicitors advise their clients to go for trial in a Crown court if they are to obtain any sort of justice. At least then the trial will begin on the due date and continue until it is finished, and there will be a jury to judge the case.
196 I criticise those who think that the solution to the problem is to build more and more Crown courts. That is wrong. However, nor is the solution to be found in building more magistrates courts. We should find a better way of organising magistrates courts. There should be more stipendiary magistrates, and there should be better organisation of the whole process. That would alleviate much of the problem in the Crown courts. It is trite and easy to go along the road of building more Crown courts.
I remember when there were only a few courts in London, but they coped. We have now more than quadrupled the number of courts in London. The number of offences has not quadrupled, yet there is still the same delay in cases coming to trial. Therefore, putting in more money is not the solution. Everyone may think that it is the easy solution, but it is not. The better solution would be to reorganise the whole system. There should be better organisation of the list system, better organisation of the way in which we charge, and the whole process should be changed. Indeed, perhaps too many people are being charged with trivial overnight offences, and they should be dealt with in a different way. Charges relating, for example, to being drunk and disorderly take up a great deal of time.
Although I believe the Bill to be a good measure, it does not go far enough. It will be far more expensive than we originally thought. It will deprive a great number of people who may have committed offences of the very safeguards which the Bill originally envisaged. There will be first-class and second-class offenders. The first-class offenders will be those who have been arrested by the police. They are fortunate, because they will have an independent prosecuting authority looking after them. If I am to believe my right hon. and learned Friend the Home Secretary—and this is the whole basis for setting up the service—the second-class offenders will not have the advantages of the independent prosecuting service. That sort of anomaly must be considered.
Why should the independent prosecution service not cover the military police, the naval police, the RAF provost police and the Ministry of Defence police?
§ Mr. Ashby
I have already mentioned the transport police. I have not previously referred to the armed forces police. I see no reason why they should not be subject to the same safeguards and the same prosecuting authority in this country, and probably abroad. There would be no difficulty about someone going abroad when cases were being prosecuted. So many of those cases could be prepared in this country. After all, people who have committed offences and are court martialed are defended by barristers and solicitors, so why should there not be the same prosecuting authority? The laws are virtually identical, so we are concerned with the same offences. I apprehend that there would be a great saving in the defence budget, and that should commend itself to the Secretary of State.
§ Mr. Derek Spencer (Leicester, South)
It is about 20 years since I was the pupil of my right hon. and learned Friend the Attorney-General and trod in his footsteps in the eastern counties. During the intervening years many 197 aspects of our criminal justice system have changed. If this measure is passed, another chapter in that evolving story of change will have been written.
In those 20 years or so I have appeared as counsel and sat as a recorder in cases which have been conducted on the basis of four different systems, each with its own strengths and weaknesses. First, I appeared in a few cases in magistrates courts in which the police were their own advocates. The advantage of that was that it certainly was quick, and it was probably cheap, but it had the grave disadvantage of not looking much like justice. I remember to this day the embarrassment of a young police officer being re-examined, no doubt by his chief superintendent, to try to repair a hole which had emerged in the course of the prosecution case in cross-examination. We can now put that behind us without any sense of regret.
The second system which I have seen operated at first hand is that by which the police themselves instruct privately local firms of solicitors on the ordinary client basis. That system is close to my heart. I was brought up under that system in East Anglia. The system is to this day in operation in Leicestershire, and I know that they will be sorry to see it go. It has great strengths. It enables the police to brief local firms of solicitors whose standards are of the highest and to receive advice apposite to the locality.
But for all its strengths, the system has weaknesses. It leaves open the suggestion that a prosecution has perhaps not been brought when it should have been brought, for local reasons, or that a prosecution has been pressed further than justice required. Therefore, although I feel with the police in Leicestershire with my heart, with my head I am against them, and as with the first system of which I have had experience, the time has come to wrap it up.
The third basis on which prosecutions are conducted—it is now the most common basis—is that of county prosecuting solicitors, or, in the metropolitan police area, by the metropolitan police solicitor. The strength of that system is that it provides for a police authority comprehensive legal advice on a regular and accessible basis.
I pay tribute in particular to the managing clerks of the Metropolitan police solicitors' department who over the years have rendered sterling service in the cause of the administration of justice. Mr. McGrory, for many years at the Old Bailey, and Mr. Walter Ball, at the other side of the square and latterly across the river, set high standards which their successors followed. They were managing clerks of the old school.
If the new service is to prosper, their successors must display the same standards of integrity and competence. I hope that when my right hon. and learned Friend supervises the work of the staff commission which is to be set up under clause 12 he will ensure that the successors of the managing clerks of the Metropolitan police and county prosecuting police service will suffer no loss under the new system and that they will continue to be the backbone of the new, as they were of the old.
The disadvantage of the county prosecuting system—I include the Metropolitan police system—is that for all its merits it lacks the independence which is required of a successful prosecuting service. Only recently, when I was instructed by the Metropolitan police, I advised that 198 the results of certain police inquiries which had been conducted abroad should be disclosed to the defence. It was much to their advantage, and to the disadvantage of the Crown, that that course should be taken, but it was clearly the right course to take.
Within hours of my tendering that advice, the two zealous police officers, who were disappointed to receive it, had gone hotfoot to one of the solicitors of the Metropolitan police saying that they did not want to comply with the advice that I had tendered and that they thought that I was letting the side down. They were, of course, properly put in their place by the solicitor to the Metropolitan police. The fact remains that they felt able to make that journey.
I am confident that under the new system police officers who are disappointed with the advice given by prosecuting counsel will not think it appropriate to repeat journeys of that sort. They and everyone else will be able to see that it is a truly independent service and that the solicitors who are acting are not solicitors representing the police.
The fourth system of which I have some experience is that conducted by the Director of Public Prosecutions. The advantages of that system are well known—the integrity of the organisation, its independence and the high standards that it sets. However, as with all organisations, it suffers from disadvantages and weaknesses.
As at present constructed, on occasions it is remote from the local flavour of cases which are, under the current rules, referred to it. Under the new system, of central supervision but under local operation, some cases which at present are referred for examination and conduct by the director centrally will find their way to the local Crown prosecutor. Thus, those who bemoan the changes that we are contemplating as excessive centralisation fail to recognise that in some respects, in day-to-day operation, cases will be dealt with in the areas in which they arise. We shall have improved the present system under which the Director of Public Prosecutions operates.
The staff of the Director of Public Prosecutions occasionally labour, through no fault of their own, under another disadvantage. Because of the pressure of time, they sometimes find themselves acting as a post box between the police who have sent them a case and the counsel they are to instruct. In some cases the police have been known to say that the papers have been gathering dust in the director's office. After inquiry by my right hon. and learned Friend the Attorney-General, the papers have been found to be with the police. Under the new unified system, the tendency for briefs to fall between two stools — sometimes they appear to do so—will be eliminated.
Although I have twinges of regret, I welcome the proposals in the Bill. Two other topics have exercised the minds of certain hon. Members, the first of which is the matter of appeal against sentence by the Crown. Although I know that I am very much on my own in saying this, I have always been puzzled by the fact that a dissatisfied defendant could go hotfoot to the Court of Appeal and get his sentence reduced, but, when a manifestly unjust sentence had been passed by a court, virtually nothing could be done if the offence had been tried on indictment. Reference has been made to some minor exceptions to that, and one still remains. The Crown court still has all the powers on appeal that the original magistrates court had available to it. Therefore, if so minded, the Crown court can increase the sentence. Is that at odds with the double jeopardy rule?
199 The former Court of Criminal Appeal used to have power to increase sentences. Lord Chief Justice Goddard on occasions did so, with salutary effect. Was that in breach of the principle of double jeopardy? Although I accept in its strictly literal sense the argument that the prosecution is not involved in sentences, I think that by implication that is a lot of pompous nonsense. Almost inevitably it is the prosecution that furnishes the court with the facts—either in aggravation or in mitigation—that enable it to assess what is a just sentence. There is nothing wrong with the prosecution fulfilling that role, not only at the first instance when the case is tried but in the Court of Appeal when the sentence may be reviewed. There is no difference in substance between the approaches at the two levels.
We frequently see testimonies to the public interest in those sentences that are a threat to the safety of the public because they are unduly lenient. They leave the public with the feeling not merely that the law is an ass but, in a number of instances, that it is a dangerous ass. That is a most unhealthy state of affairs. I would encourage my right hon. and learned Friend the Home Secretary to continue his pursuit of finding an acceptable way to alleviate this public disquiet.
I would even have gone so far as to accept the benighted clause 22—not because it was acceptable but because I would have viewed it as a partly open door which the public, once they had been able to insert their shoulder, would assuredly have shouldered open to bring about a full right of appeal against sentence. I know from my experience at judicial conferences that the judiciary almost to a man is completely against that measure; so is the vast body of opinion in my profession. I am not deterred by that. Some matters are too important for the Bar and even too important for the judiciary. Public disquiet about manifestly unjust sentences is one of those matters, and something must be done about it.
The second topic that concerns hon. Members involves the clauses that will impose a time limit on the completion of cases. The first time a case fails because time has expired under the new provisions will compose a number of minds wonderfully in the area in which it takes place. I think that it will be an effective way of composing minds throughout the prosecuting system — the police in bringing the papers together, the prosecuting service in briefing counsel, and counsel in drafting the indictment and getting the case ready for court.
The pulse of some cases falls to a lamentably low level on some occasions. One wonders whether a case is still alive. It requires a positive act of resuscitation to bring it back to life, sometimes years after its birth. That is regrettable and, under these clauses, it will end.
I welcome the changes that the Bill makes. There will be the usual touch of nostalgia that all lawyers always feel about worthwhile legal reforms. The legislation will mean that some of my legal experience of the past 20 years lies once again on the shelves of legal history.
§ Dr. John G. Blackburn (Dudley, West)
When we gather to debate the Second Reading of this important Bill I am sure that one of the most important matters on our minds has been the origins of the legislation. We go back to 1978, to the Royal Commission under Sir Cyril Philips. In that connection, I see on the Benches many of the cast 200 from the old Police and Criminal Evidence Bill which fell immediately before the last general election. They look as young as they did on that occasion.
I am delighted that my hon. and learned Friend the Member for Burton (Mr. Lawrence) did not pursue the pathway that he pursued the last time he addressed the House on the Water (Fluoridation) Bill, keeping us here for five and a half hours. Perhaps the reason is that tonight he was speaking without a fee.
I am especially concerned about one of the important features which has been brought to our attention and which was the kernel of the issue involving the Royal Commission. On page 127 the report states:the arrangements are characterised by their variety, their haphazardness, their local nature and at least as far as the police are concerned … the nature of the investigative and prosecutorial functions".There was considerable complaint about the lack of consistency. The House speaks with one voice when it seeks consistency through the provision of these services. I agree with all the comments of my right hon. and hon. Friends who have stressed the need for a high quality service in keeping with the tradition of our legal system.
As recently as 24 hours ago, I received an important message from my constituency which expressed anxiety that 400 members of the legal profession would be needed to administer the service in the courts. My local chairman of magistrates has been in touch with me and suggested that the figure could be nearer 700. It is a matter of speculation. I am worried that there have already been moves within the legal profession, in particular, among those engaged at local court level, to move to higher paid positions, and that that action has been taken before the House has given approval to the Bill. It is also a matter of anxiety to many people, including myself, that 600 police officers will equal 400 barristers. That is the equation that will be used in the manning of the service.
The service is new. It has received wide acclaim in the House today. We must guard it jealously to ensure that it is presented in a fine and honourable way.
I associate myself with the considered comments of my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths), who said with feeling and from considerable experience that the cost of administering the service must not come from the Home Office budget. As a devoted disciple of the Conservative party, I am worried by the fact that we spent £1 billion on the police service in 1979 and that by 1983 we were spending £2.5 billion. That is the measure of the Government's commitment to law and order. I should be sad if the Home Office budget were reduced to cater for the service envisaged in the Bill.
My right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) mentioned in his most excellent speech an important factor which occupies the attention of all engaged in the legal process—that there should be a speedy conclusion to cases brought before the courts. In many instances, the failure to have a speedy conclusion to a case is not the fault of the prosecution.
The House has always been generous to me, and I am sure that on this occasion, Mr. Deputy Speaker, you will grant me licence while I relate my work on the Home Affairs Select Committee. I was staggered when I went to Brixton prison—the biggest remand prison in Europe. I spent several days there studying the procedures. I was astonished beyond belief to find that there were people in prison who had been on remand for a year. That would he 201 unacceptable if it were the fault of the prosecution, but those men were there for a year because of the defence. I was even more horrified when several prisoners told me—I use this expression because it was the one they used to me—that they were "working the system". The system is that if they have a number of previous convictions and are likely to be sentenced to, for example, five years' imprisonment if found guilty when they appear before the Crown court, it is better for them to remain on remand where they have the benefit of daily visits and their own food. The fact that the man has been in custody for a year is taken into account when the judge sentences him. We should have justice, because that binds us in the House, but we should have it speedily for the sake of the prisoner and the prosecution.
During the debate, we have heard the voices of management consultants, the police, the legal profession—solicitors and barristers—and two recorders. During my many years in the police, I often prosecuted in cases such as those referred to by my hon. and learned Friend the Member for Leicester, South (Mr. Spencer). His was a history lesson, and he made me feel old when he related that experience. When we prosecuted we knew about the case and its background. On sober reflection, and perhaps with a touch of nostalgia, we look back on those cases and the relationship between the police and the public, and when the pages of history are written that will be seen as commendable and as something that brought the police and the public together.
I have spoken about all those voices, and I should like to speak now about the voice of the people who elected me and gave me the great privilege and honour of representing them in the House. I must tell the House of the unpleasant features of my work as a dedicated servant of my constituents. If we are to have justice my soul's cry is that we have equal justice throughout the country because no one is above the law and, by the grace of God, no one is beneath it. One of my constituents was arrested for damaging a padlock valued at £1.68. He was taken to prison and spent three weeks there. At the end of three weeks, he was found murdered in his cell. There were subsequent trials, but no conviction.
I am speaking with the voice of my people when I say that that should never have happened. But it did happen and, tragically, when I visit the widow and the two children of Mr. Barry Prosser I realise that, if we had had a fair prosecuting system, as envisaged in this Bill, when I went to that house and met the dog and the family I would still have met Mr. Prosser. People tell me about such cases in my visits to the constituency and in correspondence. I listen to the voice of the people and I beg those on the Treasury Bench to do so. The people are saying exactly what my hon. and learned Friend the Member for Leicester, South is saying—that perhaps there should be provision for an appeal by the prosecution against the sentence.
I had a constituent who was brutally assaulted in her home. She was left for 36 hours with her injuries and, as a result, she died. The assailant appeared before the court. The tragedy of the abuse of and disrespect for the law meant that that man, who had previous convictions, was sentenced to five days in prison.
The voice of the people is saying that there should be a right of appeal by the prosecution. If it is right—as I 202 believe that it is—that the convicted should have the right to appeal against conviction and sentence, it is equally right that the prosecution should be granted the facility, in exceptional cases, to appeal against the sentence. But the law of this land must always be saturated with compassion.
I am particularly opposed, because of my former experience as a police officer, to any concept of a national police force. I lived through an era in the police service when the small forces of some 200 men gathered together and formed larger forces. A new concept came into the criminal investigation department — the concept of regional crime squads. Those squads were working to the absolute maximum as regards their area of responsibility. If we are to have a national prosecution service, it is vitally important to satisfy the people that that service is at least at regional level and is administered and negotiated at regional level rather than at national level. In that respect I very much agree with the argument of my hon. and learned Friend the Member for Burton.
I believe that the people will welcome this Bill because it has the priceless virture of independence. It removes from the police the burden of determining prosecutions. That will be welcomed throughout the land. There have been suggestions—I will put it no higher than that—that there will be an opportunity in future legislation perhaps for the provision of an appeals procedure. I believe that the legal profession—the prosecuting profession, if I may so describe it—will use it with the greatest care and very rarely.
I hope that, in responding to this debate, my hon. and learned Friend the Solicitor-General will do me the courtesy of mentioning, in particular, clause 18 concerning the award of costs against the accused. I should like an assurance from him that when any person is convicted of an offence in the Crown court the court may make an order for such costs to be paid by the accused to the prosecutor as it considers just and reasonable. Perhaps this is the wonderful spirit of compromise, but I believe that if there is an appeal to the Crown court and the person making the appeal has gained financially as a result of his actions—and that appeal, as we have heard from the legal profession, which has been very well represented in this debate, is a very expensive exercise—if the appeal is lost there should be an opportunity under clause 18 to make an order for costs and it should be used. One of the great problems is that the laws are there but they are not used or implemented and are thus held in contempt.
It is in that spirit that I welcome this Bill, with its origins in the Royal Commission. I welcome the voice of public opinion that has brought about these changes by evolution. However, I give a guarded warning to the Ministers on the Treasury Bench that many people will be looking very carefully at the costs of the measure and the question of an appeal by the prosecution in certain circumstances, and will look forward to the proper implementation of clause 18.
With those comments, I wish the Bill godspeed.
§ Mr. Kenneth Hind (Lancashire, West)
One of the major concerns that I first had in considering the prosecution service was that the distance which has traditionally been maintained in the English legal system between the executive and the judicial prosecuting function should continue. The Bill does that quite 203 admirably and I hope that in carrying out his functions the Attorney-General will maintain impartiality in making decisions on prosecution and speaking on behalf of the Government as their Law Officer. That distance is very important in the structure of our constitution, although unwritten.
The Bill, which I very much welcome, takes the system of prosecuting one great step further forward. My hon. and learned Friend the Member for Leicester, South (Mr. Spencer) outlined the different systems that exist. Perhaps in his nostalgia we see many of the failings of the existing system. The most important failing at the moment is that the police, in every case where a prosecuting solicitor acts, are the clients. Therefore, they give the instructions, and the pattern of behaviour of that prosecuting solicitor or barrister appearing for the Crown is dictated very much by the views of the police.
Over the years, the maintenance of the fiction that a barrister, once charged with a case, controls it and directs its course has led to the idea that the prosecution is conducted by counsel, particularly in Crown court cases. Having seen practice at the Bar in both the provinces and London, I regret that in London that fiction has been further eroded to a large extent. However, the Bill will restore the original position.
From personal experience, on several occasions, I know that police officers are charged with the investigation of the case. They gather the evidence, come to court and, particularly in London — it is totally unheard of in parts of the north of England — they sit behind counsel all the way through the case, both before and after they give evidence. In my opinion, that is a monstrous situation, which the Bill will see the end of. The consequences are that the case is directed by a police officer, who may come to court during the year up to perhaps a maximum of 20 times, to deal with 15 or 20 different charges. As a consequence, he takes no overall view of the policy considerations that are necessary in the prosecuting department covering the whole area. Therefore, his experience and influence are limited and, in many respects, bad.
The Bill places into the hands of a group of professional lawyers the control and policy direction of prosecutions within a defined area. Those who, like myself, have practised in the provinces and who have detailed experience of the county prosecuting solicitors departments can see the strength of adapting that policy to the problems of the locality and dealing with them through an overall policy. That is what the Bill will do. It will take away the influence of the police in deciding who should deal with what, what the accused should be charged with and the overall direction of the case. A fresh mind, which is objective and based on decided policy, perhaps gathered over a period of time, will direct the policy.
It is important to look at the way in which the system will go. I can tell the House from experience that particularly in West Yorkshire, where I know the system extremely well, a representative of the prosecution service sits in every Crown court. The cases in magistrates courts are prosecuted by a solicitor representing the county prosecuting department. The Bar does not appear in the magistrates courts, except in very long cases in West Yorkshire. Despite what I have heard and the reassurances that have been given, I must warn my colleagues in the metropolis that that is the way the system will go.
204 In each case before the Crown court, if there is a representative of what will no doubt become the metropolitan Crown prosecutor's department, that will be a welcome help in the prosecution of cases. In places such as inner London there are perhaps one or two staff from the prosecutor's department covering 12 or 13 courts. If a crisis arises and there is a need for the prosecuting solicitor to give a further opinion, particularly when counsel clashes with the police over the direction of the case, someone coming into the case who has had nothing to do with it is handed the papers and told, "The case is based upon this. It has been going for a fortnight. I am sure that you will pick it up quickly." Such a practice will, I hope, come to an end.
I join my hon. and learned Friends who have said that 400 solicitors taking over the system throughout England and Wales will be totally inadequate. Looking at the costs, I am sure that there will be much greater overheads than have been suggested so far. We shall find that the present county prosecuting solicitors departments will appear very much like Rolls-Royce departments when they are compared with the metropolis, which will be like a 1935 Austin. There will not be a uniform system if the existing county prosecuting solicitors departments are run side by side with the newly created department. In my experience of the London system, the department is too small. There are too few solicitors. I echo the tribute of my hon. and learned Friend the Member for Leicester, South, who said that the people there worked very hard. They do, but there are too few. They cannot possibly cover properly the prosecution problems which this city faces.
The second matter with which the Bill is concerned is the delay over trials. Again, London compares unfavourably with the provinces. When I first came down to London on a regular basis as a Member of Parliament, I used to return on the train with a former colleague at the Bar who is now a circuit judge, sitting at Southwark. He used to say to me that it was not unusual for him to try a case that was 12 months old. In the metropolis, because of the sheer inefficiency of the organisation in the courts, the time taken to bring cases to the Crown court is far too long. We have seen the effect of that recently. A year is too long. Witnesses' memories decay. One even loses track of witnesses. If a 12-months-old case were tried in the north of England, it would be described as an old case. If we look at the record of the north-eastern circuit in particular, we find that the average time for a case to come before the Crown courts is between four and six months, and that is from arrest to trial. We should be working on such a time limit.
I hope that the Home Secretary will draw on the Scottish experience when he draws up his regulations for the time for cases to be brought to trial. I hope that we shall see a real tightening up of the system in London, to the betterment of speedy justice in the area. Twelve months on remand in custody at Brixton is totally wrong. The problem must be solved. Only the House can solve the problem.
Hon. Members have spoken of cases where defendants who knew that they were facing long sentences deliberately played the rules of the prison to ensure daily visits and privileges, such as cigarettes, parcels, and visits from wives or girl friends. We must consider the rules carefully, because we can also make the system more efficient in that respect. Unfortunately, the Bill does not deal with that matter.
205 When the Home Secretary draws up his regulations, perhaps he will consider carefully the success of the provincial circuit in listing cases and dealing speedily with them, especially compared with London. It is unfortunate that I am the only hon. Member to have spoken in the debate who has a great deal of experience of practice in the provinces.
Hon. Members have mentioned matters which are not included in the Bill. I take the point of my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) that the Bill does not include the other aspects of prosecuting that exist — Customs and Excise, Inland Revenue and the transport police. I do not accept what he says about the armed forces or the Atomic Energy Authority police, but there is room for the inclusion of the Inland Revenue police and Customs and Excise.
Many large drug prosecutions are taking place in which customs officers and the police worked side by side in the investigation and consequent prosecution. I am thinking of the importation and distribution of drugs, especially where officers from both branches are working underground to bring about arrests and subsequent trials.
I am pleased that the Bill does not deal with the movement of cases from Crown courts to magistrates courts — I disagree with my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) about that—in the sense that the right of jury trial has been a fundamental plank of our democracy. That should always be so. My hon. Friend the Member for Dudley, West (Dr. Blackburn) referred to the man who stole a padlock worth £1.68. If an elderly person is accused of stealing from a supermarket and has 60 years of good character behind him, he may think that as a matter of principle he should be tried by his peers. That is one reason, above all others, why the right of jury trial should be preserved.
We often avoid summary trials. It is a fact of life that if we took three lawyers from these Benches who practised in the courts before they were elected, the tribunal would probably be extremely cynical. They would say, "We have heard it all before. We have met such clients." However, the point of a jury trial is to bring 12 members of the general public from their ordinary walks of life to deal with the matter. They do not apply the cynicism of a lawyer, but introduce a draught of fresh air. They apply the objective values of daily life to the problems. A movement towards more magistrates court cases merely for reasons of cost is bad, because it undermines a fundamental principle on which our unwritten constitution relies.
I shall address my closing remarks to the missing clause 22. Much has been said about it. The most fundamental problem with the clause as it was drafted was simply that if a mother or father of the victim of a manslaughter case felt that the judge was wrong to impose two years imprisonment or probation on the convicted manslaughterer and knew that if the case were referred to the Court of Appeal it would examine the facts and decide that the convicted person should have got 10 years instead, they could do nothing about it and the convicted person would be able to walk the streets a free man.
That is highly unsatisfactory. My right hon. and learned Friend the Member for Warrington, South may have been right when he said that this was a matter for constant examination by judges in their sentencing conferences and 206 for the Lord Chief Justice to give sentencing directions in the Court of Appeal to make it clear to recorders and Crown court judges how the policy should be operated.
Overall, this is a very good Bill. It is a big step forward for the judicial system and one that has been needed for a long time. I hope that the House will give it full support and appreciate that we may be making history today.
§ 9.5 pm
§ Mr. Greg Knight (Derby, North)
I suppose that a past interest is no interest at all, but I place on record the fact that I used to practise as a solicitor in Leicester. In Leicestershire the police do not have a prosecuting solicitors' department but use solicitors from private practice, of whom I have been one. If I were to base my judgment today on my experience of the way in which the system has worked in Leicester, I should be arguing for the dismantling of the prosecution service and for the police to be able to hire those solicitors whom they regard as right for the job. It is necessary, however, to take a broad view and, although things have worked well in Leicester and, I believe, in Derby, there have been problems in other parts of the country.
A number of solicitors employed in that way have not been prepared to apply their own judgment to cases given to them by the police. The same applies to less experienced members of prosecuting solicitors' departments. Having been asked to appear for the prosecution in a magistrates court, they may be far from happy with the case and feel that the evidence does not justify the case going ahead but they are reluctant so to advise the police, perhaps fearing that they may get a reputation for being a "softie" and that the police may not seek their services in the future. In other words, solicitors in private practice and young advocates making their way in prosecuting solicitors' departments may hesitate to crib at directions given to them by the police. That is undoubtedly a weakness in the present system.
As my hon. Friend the Member for Dudley, West (Dr. Blackburn) has said, the police still prosecute in many cases. Even in Leicester not all work is given out to solicitors. The police are closely associated with the case, which my hon. Friend seemed to regard as an asset. The problem is that they are also closely concerned about the outcome. In that situation, I believe that there is some danger that justice may not be done. I entirely agree with my hon. and learned Friend the Member for Leicester, South (Mr. Spencer) that justice must always be our target and one of the main criticisms of the present system is that it is patchy.
As I have said, the existing system has worked very well in Leicester, but other parts of the country have been less fortunate. Indeed, in some areas the attitude of the prosecution has varied from week to week. More than once I have been acting for the defence in cases in which the police had no objection to bail one week, with the result that bail was granted, but the following week—without any new facts having come to light or any suggestion that other offences might have been committed, but merely because a different police officer or prosecuting solicitor was appearing in court—bail was suddenly opposed and the defendant remanded in custody.
I hope that one of the benefits of instituting a national prosecution service will be that guidelines will be laid down for those whose job it is to prosecute cases and that there will be a degree of uniformity throughout England 207 and Wales. At present, in many areas, the public have lost confidence — perhaps fairly in some cases — in the police. I hope that if the power to decide to proceed with a case is removed from the police confidence will be restored.
Some hon. Members have said that they are afraid that by setting up the centralised prosecution service we shall create a bureaucracy. However, if it leads to even-handed justice, the measure will be welcome.
I now wish to raise two specific points. Clause 11 makes provision for the transfer of staff currently employed by local or police authorities. Is there to be an element of judgment, when the transfer takes place, of the ability of members of staff who have previously been working for prosecution departments, or is the clause merely intended to deal with the formality of the change of employer?
Clause 18 is about costs. I hope that the Government will take note of the fact that in the past there has sometimes been injustice when the prosecution has succeeded in a case and, after the conviction, has set a figure for the costs of the case. In a large number of cases in which I have been involved, that figure has not been justified or explained to the court. Inevitably, however, the defence solicitor has to accept it and the court will make an appropriate order. According to clause 18, a convicted defendant can be ordered to pay "just and reasonable" costs. May I be assured that, because of the inclusion of the words "just and reasonable", it will be necessary for the prosecution to give a brief justification of its figure? In a number of cases the costs have escalated, perhaps because of the illness of a prosecution witness or the absence due to other work of an advocate whom the prosecution wished to take a particular case. In the end —I am thinking mainly of cases in the magistrates court—the prosecution may have mentioned a figure for costs not all of which, in my opinion, should have been the responsibility of the defendant. I hope that the words "just and reasonable" will mean that those who apply for costs will need to outline to the court how the costs were arrived at.
I turn to what I may call the missing clause. Whenever a profession, even my own, closes ranks, I become suspicious. The comments of my hon. and learned Friend the Member for Leicester, South must carry some weight. Whenever a sentence is passed that seems ridiculously lenient, there is a great deal of public disquiet. It is surely reasonable and proper that the prosecution should be able to take the matter to an appeal tribunal that could comment on it. I hope that the House will not accept the view of another place, and that the Government will decide to reinstate the clause.
I wholeheartedly welcome the Bill.
§ Mr. Nicholas Brown (Newcastle upon Tyne, East)
The Bill touches but lightly on party politics and its principal provisions are welcome to the Opposition.
The hon. and learned Member for Burton (Mr. Lawrence) described the Bill as a revolutionary Socialist measure. If it is—I have my doubts about that—we should have some more of it. Conservative Members present do not strike me as fitting the description "Revolutionary Socialists" and their leader, the Home Secretary, would not identify himself as one. The Bill sets up an independent prosecution service for England and 208 Wales similar to that in Scotland, and establishes statutory time limits on the prosecution of criminal cases. In principle, the proposals are welcome and have been recognised as such by almost everyone who has spoken today.
My hon. Friend the Member for Blyth Valle) (Mr. Ryman) rightly paid tribute to the standards of the prosecution service. Our support for an independent prosecution service implies no criticism of those who service the existing machinery. I have a high regard for their work. Our support for the establishment of a separate and independent service is based on the key conclusions reached by the Royal Commission on criminal procedure that the present arrangements are defective and fail to provide a filter to avoid bringing to court cases which lack merit. Only yesterday I raised at Question Time such cases with the Attorney-General.
The Royal Commission concluded that the functions of the police chief should end with the decision to seek prosecution, after which the case should be dealt with by an independent service which could, if it felt it was right to do so, discontinue the prosecution. I am worried about how the relationship between the new service and the police will work in practice. I envisage substantial scope for argument between a police chief who wants to prosecute and a newly independent service which argues that the evidence is not strong enough. It would riot be right to establish a service in such a way as to encourage a chief constable to settle every local argument by appealing for a national decision from the office of the Director of Public Prosecutions.
I fully appreciate that good working relations between the police and the prosecution service will be of considerable importance. However, the relationship that has existed hitherto is being changed. It is important that that happens in practice as in well as in theory.
I agree with my hon. Friend the Member for Blyth Valley that the staff of the new service deserve some consideration. It might sound trivial, but the job title is important. I am grateful for the Government's recognition of that. If the new service is to be firmly established, the staff commission will have to be able to meet the legitimate anxieties of employees and clarify matters such as the tenure of office and continuity of service.
I hope that the new service provides a career structure that attracts able people and enhances the administration of the law. It is right that the legally qualified officers of the service have the same rights of audience as practising solicitors. I welcome such provision. I noted the reservations of the right hon. and learned Member for Warrington, South (Mr. Carlisle), but I do not share them.
I wonder whether the Government will consider the idea of an inspectorate for the new service. I recognise the strengths of examining the possibility of that and understand that the annual cost of such an institution is not prohibitive. Perhaps we should return to that issue in Committee rather than go into it now.
The intention is that the new service will be a national service for England and Wales. I understand the desire of the Government to provide a service free of undue local influence. The narrow decision on whether the evidence warrants prosecution should be taken professionally, without lay and political intervention. That means that it should be taken without lay and political intervention nationally as well as without such intervention locally. However, it must be said also that policing policy and the 209 generality of the administration of justice are matters of considerable public concern. It is the failure of police authorities to get to grips with these issues, largely because of the power of chief constables over operational matters, that leads to public concern and some public disquiet.
Somewhere in the system there has to be accountability. The issue may run wider than just this Bill, but it is long overdue for review. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) spoke in some detail about accountability, which is a live issue. Without canvassing a solution, may I content myself with saying that it is a subject to which the House must return.
Advocates of the Bill hope that it will at least halve the current 14,000 referrals to the Director of Public Prosecutions. I hope that that turns out to be the case. So that we may see how well the new structure is serving society, I urge the Government, in spite of what Conservative Members have said, to give consideration to reviewing the new structure after a year or, at the very most, within three years of its establishment. There should be within the Bill a commitment to review. I am not expressing an opinion on the type of mechanism, but there should be a way of picking up loose ends and things that have not worked out as we might hope.
I was taken with the argument advanced by my right hon. Friend the Member for Halton (Mr. Oakes) who urged the case for a review. He referred to his reservations about centralisation. Given the concern that he expressed and the concern of the Association of County Councils, may I add my voice to their call for some mechanism to examine the workings of the new structure that we are setting up?
Hon. Members have referred not just to what is in the Bill but to what we thought might have been in it. I was slightly saddened to hear the Attorney-General intervene in the speech of my right hon. and learned Friend the Member for Aberavon and refer to his mailbag. The one method that should not be used for deciding whether a sentence is just or unjust is that whereby individual members of the public write to express their opinion, based probably on nothing more than what they have read in the newspapers. Inevitably the popular press will print what it thinks people wish to read and will not provide even a popular balanced version of the proceedings in court.
The proposal in the original clause 22 was superficially attractive. I understand what the Home Secretary said: public opinion runs deeply on sentencing policy. However, the original clause 22 was not the way to deal with it. The method that was outlined in that clause was fraught with so many real dangers that I hope we have heard the last of it. May I confine myself to saying that I am glad it has been dropped from the Bill, not least because of the other matters in the Bill that have general agreement?
The prosecution of juveniles was referred to in another place and it is right that it should be discussed here, too. It is touched on lightly in clause 27. We all accept that there are special features to juvenile crime. To deal with it solely through the mechanism of punishment, as one would deal with adult crime, is not sufficient. We shall go into this in more detail in Committee. There is a case for a separate and distinct department to deal with the prosecution of juveniles.
210 On time limits, I wish, as do my hon. Friends, that the proposals were more definite, but I welcome the principle and I understand the Government's arguments. I particularly welcome the Home Secretary's statement that the field trials will test how and not whether we should have time limits. I hope that the trials result in definite dates being fixed. I accept that they may have to be different initially for different parts of the country. However, the case in principle has been well made in the debate today, and no hon. Member has spoken against the principle of having time limits.
I have no experience of the criminal law—the only way in which I would have is if I had been on the receiving end of it. As a union official for the then General and Municipal Workers Union before I came to the House, I had to deal with the civil law. I administered the legal services on behalf of the northern region. The regional secretary, Tom Burlison, courageously pursued pioneering case law on asbestosis. I had bitter experience of seeing defendants, usually insurance companies, delay cases, waiting for the applicants to die because the compensation that would go to their families would be less than what would go to the defendants. It was not nice to see that being done, and it prejudices me in favour of time limits. The law should be promptly available to everybody.
The hon. Member for Bury St. Edmunds (Mr. Griffiths) referred to the part of the Bill that states that some matters will not be referred to the prosecution service. I had assumed that this was to deal with minor matters, and I had not appreciated that there was an issue involving minor offences committed by police officers. If that is the case —perhaps the Solicitor-General will clarify the point—I have some sympathy with the point of view expressed by the hon. Member for Bury St. Edmunds. It would be difficult for a young police officer who has done something wrong, but is not such a substantial crime that it automatically comes before the courts, to be in a position in which his superior was holding that offence over his head. Even with the best of intentions, that is not the right way to deal with these matters.
Some hon. Members have been unduly alarmist and over-critical about the costs of establishing this new service. It is worth the cost; it is a justifiable expense. However, so that we can see precisely to what we are asking the House to commit itself, it would be of assistance if, in Committee, the Government could table an explanatory note showing how the costs are arrived at. The hon. Member for Bury St. Edmunds said that he was concerned about the effect of the Bill on police manpower, and the hon. Member for Dudley, West (Dr. Blackburn) made the same point. However, as I understand it, the only part of the Bill relating to manpower is the freeing of some 600 policemen from other duties, and I should have thought that that would be welcomed.
The hon. and learned Member for Burton put up a strong case for his trade union, and, as a trade unionist, I do not think any the less of him for that. As only the third non-lawyer to take part in the debate, I hope on behalf not just of the profession but of the people that the outcome of our deliberations will be the better administration of justice.
§ The Solicitor-General (Sir Patrick Mayhew)
We have had a remarkable debate which has been 211 characterised by the diverse and deep experience of every hon. Member who has spoken. The debate has benefited considerably from that.
I shall begin by dealing with a number of matters of detail, because the debate has not lacked attention to detail in relation both to what is in the Bill and what is not.
The right hon. and learned Member for Aberavon (Mr. Morris), whose support for the Bill I noted with gratitude, said that there should be a provision requiring the Bill to be reviewed, perhaps within five years. I remind the House that clause 9 provides that the Director of Public Prosecutions should make an annual report, that the Attorney-General should publish it and that it should be laid before Parliament. Under clause 9(3), the Attorney-General may provide by regulation that certain matters should be dealt with and that the DPP should report on those matters. That gives Parliament an effective means of keeping a close monitoring eye on how the Act is working.
The hon. Member for Caithness and Sutherland (Mr. Maclennan) said that if a five-year period were written into the Bill we would freeze practice when we needed flexibility and responsiveness to experience in the early years. There was some force in the hon. Gentleman's comments. I do not think that there will be any lack of scrutineers of, or commentators on, the working of this radical new measure. Therefore, I cannot hold out the prospect of meeting the right hon. and learned Member for Aberavon in that regard. However, I agree that it is important that a close eye should be kept on how the Bill develops.
The right hon. and learned Gentleman spoke about the status of chief constables and chief Crown prosecutors. Decisions on the gradings of chief Crown prosecutors and other posts in the new service will be taken in the light of the consultants' report which will be submitted shortly. It is important that chief Crown prosecutors and all prosecuting members of the new service should be remunerated on a basis that ensures that they provide the high standards that will be required.
§ Mr. John Morris
As this is such an important matter, will the Solicitor-General give us an assurance that he will seek advanced guidance from the consultants so that we shall know the salaries before we debate the matter in Committee?
§ The Solicitor-General
That will depend on when we get the consultants' report. It is expected at the end of this month, but it is the Government's intention to place as much information as possible before the Committee and the House.
The right hon. and learned Member said that he was disappointed that there was no provision in the Bill for advanced disclosure of prosecution material, but, as my hon. and learned Friend the Member for Burton (Mr. Lawrence) pointed out, that provision has already been implemented in legislation that will take effect next month. A pilot scheme for that legislation is already having satisfactory consequences. I do not think that there is anything between us in that regard.
My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) raised a point of detail when he asked about specific provisions in clause 3 in connection with alleged minor criminal offences by police officers. The Bill does not alter the current position under the Police and Criminal 212 Evidence Act 1984. Chief officers will still be required to submit reports about complaints to the director where there is an allegation of crime unless the chief officer is of the view that there should be no criminal proceedings. Usually, the report will go to the director before proceedings are instituted, but in wholly exceptional circumstances an officer might be arrested and charged —for example, for murder. If there is any further matter of detail in that regard it can best be dealt with in Committee.
My hon. Friend also raised a point about the number of police officers currently engaged in prosecution duties. It is not only 600 police officers as he suggested, but the equivalent of 600 full-time posts. That is an important point which was not made clear in the debate.
The hon. Member for Caithness and Sutherland asked why time limits should not be imposed by the Lord Chancellor. The time limits will have an effect across the criminal justice system. For example, they will have a bearing on the state and occupancy of remand prisons. It is thought much more appropriate that they should be fixed by my right hon. and learned Friend rather than by the Lord Chancellor, whose existing power is relatively limited.
The hon. Member for Blyth Valley (Mr. Ryman) asked about the future of the staff in the Metropolitan police solicitor's office. I listened to him with sympathy. There will be no shortage of work that will be both challenging and rewarding and that will make full use of the very considerable degree of expertise and experience to be found among the staff of that department. He also asked whether certain posts had been advertised. Some have been advertised by the director in those areas that currently do not have a county prosecuting solicitor.
My hon. Friend the Member for Derby, North (Mr. Knight) asked whether the "just and reasonable" provision in clause 18 meant that the prosecution had to justify its request for costs. It must certainly be prepared to justify its request and it is open to the court to test the claim. That is perfectly proper.
I hope that I might be allowed a personal note, having dealt — not very excitingly — with matters of detail. However, they were important matters and I hope that I have managed to deal with most of them, if not all. 1 was pleased, although not surprised, that my right hon and learned Friend had managed to secure a slot for the Bill in this Session's legislative programme. I was not surprised because when the Police and Criminal Evidence Bill was before the House, the then Home Secretary, my right hon. and noble Friend Lord Whitelaw, made it clear that the Government accepted the need for an independent prosecuting service. It is not accurate to say that he had at any earlier time dismissed the suggestion as costing too much money. During the passage of that measure he made it perfectly clear that we were committed to it. I was particularly pleased because, when I was in charge of that measure in Committee, I was met with a certain scepticism about the firmness of our intention to legislate.
The House will remember that the first part of the Philips Royal Commission report deals with the investigation of offences while the second part deals with the independent prosecuting service. I was, frankly, surprised by the width and intensity of the criticism that we met for not having implemented the recommendations 213 of both parts at once. It was said in some quarters, and somewhat repeatedly, that we wanted the one without the other and that we were never going to do the second part.
Sir Cyril Philips, the chairman of the Commission, made it clear in a letter to The Times that he never envisaged that we could do both at the same time. Indeed, it would have been an immensely unwieldy process, as my hon. Friend the Member for Bury St. Edmunds pointed out in his speech. We could not have done them both. As Sir Cyril Philips said, the Government were on course and he hoped that the second part would be done shortly.
Not surprisingly, the ending of the present unitary arrangements — by which the police investigate and charge offences and then, in most instances, go on to prosecute the suspects as well — has been widely welcomed by hon. Members and has been seen as the Bill's most welcome provision and reform.
That welcome came from the right hon. and learned Member for Aberavon, my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle), the right hon. Member for Halton (Mr. Oakes) and, among others whom I have not mentioned, my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby), my hon. and learned Friend the Member for Leicester, South (Mr. Spencer) and my hon. Friend the Member for Dudley, West (Dr. Blackburn), who gave a moving account of a personal experience from his constituency, cases which led him to support the independence which is the key to the system which the Bill is designed to establish.
It was not through any finding of deliberate unfairness or partiality in police prosecuting policy that led the Royal Commission to make its recommendations. On the contrary, as my hon. Friend the Member for Bury St. Edmunds will recall, the Royal Commission said:A police officer who carries out an investigation inevitably and properly forms an opinion as to the guilt of the suspect. Having done so, without any kind of improper motive, he may be inclined to shut his mind to other evidence telling against the strength of the evidence he has assembled.If we had no reason for anxiety about the way in which the system is working now; if we had no reason for anxiety about the delays before a suspect is brought to trial when, for example, he is kept in custody; and if we had no anxiety about the proportion of those acquittals which occur because the judge has either directed or ordered acquittal, we might more readily put up with carrying on with the present system. But we have anxiety on each of those scores.
I will not labour the matter because in his opening speech my right hon. and learned Friend drew attention to the delays that occur on remand in custody or on bail. It is legitimate, however, to say that in spite of the efforts of the Lord Chancellor—who has provided 50 new courtrooms in Crown courts and 45 more circuit judges, and plans to complete 50 more courts in the next three years—the sheer pressure of work in the Crown courts results in an average wait, after committal before trial, of nearly 10.5 weeks when in custody and 15.5 weeks when on bail. That is on a national basis. As several of my hon. Friends pointed out, in London the position is worse, the figures being 16 weeks and nearly 26 weeks respectively.
When cases come for trial, 25.9 per cent. of not guilty pleas lead to acquittal by the jury and a further 22.9 per cent. are acquitted or discharged on the order or direction 214 of the judge. A survey carried out for the Royal Commission showed that in about 20 per cent. of cases there had probably never been sufficient evidence. It is plain, therefore, that our present prosecution arrangements cannot by justified by the claim that the selection of cases is beyond improvement. I take very much the point made by my hon. Friend the Member for Derby, North that on occasions solicitors do not tell the police that in their opinion there is not sufficient evidence. In this context, the Royal Commission reported:this empirical evidence gains support from some people with wide experience of prosecution work—that point has been reinforced in this debate—"evidentially weak cases have been continued by the officer in charge, sometimes in the face of continuing advice from the lawyer with the conduct of the proceedings".Those words reflect a feature that has been widely criticised. Under our arrangements, the chief constable is the client of the county prosecuting solicitor or the equivalent prosecuting officer. I do not believe that that is right. The debate has evidenced a wide degree of support for the proposition that the client should be the community and not the chief constable. That factor is of particular significance where private solicitors are employed to advise on prosecutions rather than county prosecuting solicitors or solicitors employed by a police authority. That is the reason why the Royal Commission made it an essential feature of its proposals that there should be a division of responsibility between the police and the prosecutor so that someone with legal qualifications shall make the various decisions that are needed to ensure that, so far as practicable, only properly selected, prepared and presented cases come for trial. The Bill provides this. That is why it has been so widely welcomed.
Most controversy during the debate has concerned local or national accountability. I listened carefully to my hon. and learned Friend the Member for Burton. The Royal Commission criticised the present arrangements as lacking in openness and accountability and not making for consistency in policy and practice. My hon. and learned Friend said that a Conservative Government should always decentralise, never centralise. He said that there was more risk of politically motivated direction if we centralised. I must disagree with my hon. and learned Friend on each of those points. Maintenance of objective is the first principle of war. It should also be the first principle of political action. Our objective is to achieve a prosecuting service that is independent of improper influence. My hon. and learned Friend says that it is un-Conservative to centralise, but I suggest that it is fundamentally un-Conservative to tie oneself to dogma for the sake of dogma when informed forecasts show that the object will be damaged if one does. All the informed forecasts give us their answer. Virtually every comment on the Royal Commission's recommendations on local control stated that this will not work and that there is too great a risk of political influence. That is an important point.
I remind my hon. and learned Friend the Member for Burton of a leading article in the Daily Telegraph shortly after the publication of the Bill. It stated that theProsecution of Offenders Bill proposes a 'nationalised' centrally controlled system, staffed by 2,500 civil servants of whom some 1,300 woud be lawyers, and costing the taxpayer an estimated additional £4 million a year. This should be seen, however, as the necessary price for ensuring that so far as possible prosecution decisions and policy remain free from political interference.215 I was surprised to hear my hon. and learned Friend say that he thought that more political interference would result if we followed this course. Does he wish the prosecuting officers in the police force regions to be subjected to the same type of pressure as chief constables have, on recent occasions, had to face from those in political authority in their areas? I thought that his point was fundamentally wrong.
If there is to be local accountability, the Crown prosecutor must be adequately protected from the risk of improper influence. In the course of our extensive consultations no one could suggest a scheme for local accountability which adequately protected the Crown prosecutor from the risk and, at the same time, avoided the split between responsibility for the service and for the resources that will fund it. I do not believe that we could be confident that if they were given control over prosecution decisions, all authorities would act as responsibly as the best undoubtedly would.
At present, the decision whether to prosecute rests with the chief constable, as part of his responsibility for operational questions. I was asked by the right hon. Member for Halton whether there was any evidence of political pressure upon a prosecuting solicitor. There was a report that the county prosecuting solicitor for Derbyshire was told by the county council that he could not use and would not be given funds to use counsel to prosecute people accused of offences arising out of Mr. Scargill's recent strike.
I come to the subject of delegation to local decision. The principle is that prosecution decisions should be taken locally except in cases of importance or difficulty. I say to my hon. and learned Friend the Member for Burton that under the provisions of the Bill, as he is aware, some decisions which at the moment are reserved to the Director of Public Prosecutions will be taken locally by the Crown prosecutor. That is decentralisation which is achieved by the Bill.
The Government have decided in favour of block transfer of existing staff because of practical difficulty of individual recruiting and because of our confidence in the general quality of staff currently employed in prosecuting solicitors' departments. There will not be the usual examination. My hon. Friend the Member for Derby, North asked about that. There will be a block transfer because of the experience that those people have had. The exact numbers required will depend upon the report of the management consultants. The working party estimated 578 extra lawyers and 218 extra support staff. About 600 police officers are currently engaged in a full-time prosecuting role.
As to the staff of the service, the Government wholly agree with what has been said about the need to maintain a high quality, but it will of course be open to the director to designate as Crown prosecutors qualified people from either branch of the legal profession within the service. They will have identical functions. I have been asked about clause 4. It is designed only to ensure that.
As was made clear in the other place on 17 January, it is no part of the Government's intention to use that clause as a means of altering the balance between the two parts of the legal profession. The Government hold strongly to the view that the public interest requires the continuance of a strong and independent Bar, and that rights of audience in the Crown court should accordingly continue 216 to be confined as at present to an independent Bar which prosecutes and defends. That was accepted, I think, by the right hon. and learned Member for Aberavon.
I hope that what I have said meets the anxieties of my right hon. and learned Friend the Member for Warrington, South. I confirm that clause 4 does not confer upon prosecuting solicitors the right of audience in the Crown court now enjoyed by defending solicitors under the provisions of a direction made by the Lord Chancellor under section 83 of the earlier Act. Those points were mentioned by the hon. Member for Caithness and Sutherland and by my hon. and learned Friend the Member for Burton.
My right hon. and learned Friend the Home Secretary's response and purpose in introducing time limits is to reduce the delay in bringing cases to trial in magistrates and Crown courts. The Lord Chancellor is already introducing new management measures to enable targets to be set and met. The principal recommendation of the Home Affairs Select Committee's report in June last year was for the adoption of time limits. It said that there should be preliminary trials to test what limits might be feasible having regard to the special difficulties in London and the south-east. The Home Secretary had already put in hand re-examination of that issue before the recommendation was published.
I am grateful for the welcome given to these proposals by the right hon. and learned Member for Aberavon. They were welcomed by my right hon. and learned Friend the Member for Warrington, South and by my hon. Friend the Member for Bury St. Edmunds, who expressed anxiety about the Police and Criminal Evidence Act. The time limits—the clock, as he put it, that was established and wound up and started to tick by the provisions of the Police and Criminal Evidence Act—have nothing to do with the time limits that we are dealing with here. Under the police Act, those time limits relate to what happens before charge. Under this Bill, the time limits relate to what happens once the prosecution has been commenced.
I am grateful for the very wide support which clause 22 has generally received. I do not think that I need say more about that.
As to costs, the major change effected by the Bill is in the funding of prosecutions. The Crown prosecution service will be directly funded through the normal Vote procedure and this removes the need for the courts to award costs on a case-by-case basis from public funds in cases instituted by the police. The Lord Chancellor is also empowered by regulation to enable courts to order one party to pay costs incurred by its opponent as a result of an unnecessary or improper act or omission. That is a valuable disciplinary measure and will enable courts to take a greater hold over, for example, prolix counsel or dilatory solicitors.
An important change is that the Government have agreed that even if a defendant is acquitted in a summary case the court may make an order for the payment of his costs out of central funds. I say to my hon. Friend the Member for Dudley, West that the normal practice will be to exercise discretion in favour of the defendant unless there are positive reasons for not making such an order —for example, where the defendant's own conduct may have brought suspicion on him and misled the prosecution. It will no longer be necessary for a defendant to be acquitted on all counts in one indictment.
217 A fair amount of time has been taken up on the issue of what has been called old clause 22, now no longer in the Bill. This is by no means an open and shut issue. A number of considerations have to be taken into account if we are to do justice to the feelings of our constituents. It is important to remember that the full facts, including sometimes some of the most influential facts, that have led to the passing of a sentence simply do not get given full weight and sometimes are not even mentioned in a necessarily short media report. On the other hand, there really is a feeling—as my hon. Friend the Member for Dudley, West expressed it — of helpless frustration among members of the public in the rare case of a really mistakenly lenient sentence. That is what lay behind the Government's initiative.
I was very grateful to the hon. Member for Newcastle upon Tyne, East (Mr. Brown) for saying that he well understood what lay behind the Government's thinking. My right hon. and learned Friend has stated his position upon that, but, lest there be any misunderstanding, it bears repetition.
I have had warning orders, and therefore I shall conclude by saying this, having sat here throughout this extremely interesting debate. Not long ago a very distinguished legal journalist said to me that he was extremely surprised that the Government had introduced this Bill. He is a regrettably frequent critic of the Government. I asked him why he was surprised, and he replied, "I never thought that you were actually going to do it." This Bill, which so commended itself to that journalist, I now have great pleasure in commending to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time and committed to a Standing Committee pursuant to Standing Order No. 42 (Committal of Bills).