Order for Second Reading read.3.35 pm
§ The Secretary of State for the Home Department (Mr. David Blunkett)
I beg to move, That the Bill be now read a Second time.
Before I begin my speech on this important measure, I want to pick up on the points of order raised by Opposition Members on questions that have not been answered. I instructed my Department that the consultation responses should be put in the Library today and I hope they are there this afternoon. However, I apologise unreservedly if Members who have laid questions that are relevant to the debate have not received substantive answers. That is not acceptable and should not have happened, and I will investigate it.
Although I will address specific clauses so that hon. Members can reflect on those aspects that are most relevant to them and then intervene if they want to, I first want to place on the record my thanks, and I am sure those of the House, to John Halliday and Lord Justice Auld for the way in which they conducted their inquiries, which informed the White Paper of 17 July and the legislation. I thank the Law Commission for its work over a number of years which has also informed the Bill's content, along with Ministers from all three Departments that are concerned with criminal justice. I am pleased that they are represented in the Chamber today.
I also want to thank those who contributed to the consultation on the White Paper. That was extremely helpful. In doing the same for the White Paper on sex offenders and sex offences, which we discussed a couple of weeks ago, we hope to engage Members more readily than appears to have been the case when we answered questions on the White Paper of 17 July.
We have endeavoured to pull together a range of issues that are relevant to the reform and modernisation of the criminal justice system. We started in the first Parliament of this Government by introducing legislative measures that have laid the foundations for what we propose in the Bill. The Crime and Disorder Act 1998 has made a significant contribution, as I highlighted in our debate on the Queen's Speech. It is now absolutely clear that we need end-to-end reform of the criminal justice service and that that should fit with the other measures taken alongside it.
The Police Reform Act 2002 has already started to make a difference to the ability of the police to deliver their significant contribution to improving the criminal justice service as a whole. The initiative on street crime has not only made a difference by reducing robbery and snatch theft; it has also helped us to determine in what circumstances Departments and agencies fail to work adequately and, more importantly, to work together. We were able to see when they were not co-ordinated acceptably at a local level, and any major inefficiencies. All those agencies have people who work hard at a 913 local level. With the assistance of Ministers across Departments, we have seen a major difference. Importantly, we have also been able to bring that information and those insights to bear on the Bill.
I want to make this offer, which I know the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Leeds, Central (Hilary Benn), and his colleagues serving on the Bill will want to proceed with: we are prepared to listen to those who have a major contribution to make to the Bill's improvement in Committee, in both this House and the House of Lords. We do not pretend to be the fount of all wisdom; we know that this is a complex and difficult area, and we know that proportionality is required. Although I have been and will continue to be extremely robust with vested interests, I recognise that there are voices of common sense who will guide us and help us to get this right.
If the Crown Prosecution Service, the Lord Chancellor's Department and the Home Office are to be able to take forward broad-based reform that will stand the test of time and have the support of all those of good will from different political parties, it behoves us to continue listening an d to recognise that we must underpin the measures in the Bill with preventive action, which is crucial if we are to avoid people entering the criminal justice system in the first place.
§ Mr. Blunkett
I hope that my offer is extremely popular. I am just working out which of the voices I should give way to. I thought that I heard the Chairman of the Home Affairs Committee, and I will give way to him.
§ Mr. Chris Mullin (Sunderland, South)
I am grateful to the Home Secretary for giving way to one of the reasonable voices in the House. In the spirit of what he has just said, may I put it to him that our Committee and most of those who gave evidence to us think that this would be a far better Bill if it did not contain the provision for disclosure of previous convictions? I do not ask him now to give an undertaking on that point, but I hope that he will think very carefully about it before persisting.
§ Mr. Blunkett
There are many safeguards built into that provision which we will come to as we proceed through the Bill, and I will be happy to give way to my hon. Friend again at that point. The Select Committee made suggestions on a range of issues which were very helpful to us, and I will be happy to consider them, as I have done with previous Bills. I shall give way to some of my hon. Friends, but I shall give way first to the lead spokesman for the Liberal Democrats.
§ Simon Hughes (Southwark, North and Bermondsey)
I am grateful to the Home Secretary for the tone and content of his remarks so far. I want to ask him about one of the provisions on which there is potentially a dispute as to the principle but on which I hope we can achieve agreement.
We are all united in our desire to increase support and protection for victims and witnesses—I do not think that there is a dissenting voice in the House. However, 914 does the Home Secretary accept that it is not a direct balancing operation to increase support and protection for witnesses and victims and to take away the rights of defendants? It is just as important that defendants, when they are in court, have protection as it is that victims and witnesses have protection when they are engaged in the criminal justice process.
§ Mr. Blunkett
I entirely accept that. I have made the point in the House and elsewhere that this is not a zero sum game in which, if we enhance the rights of one set of people, we automatically diminish the rights of others. If we can approach the Bill in that spirit, we will achieve a degree of unity. I give way to my hon. Friend the Member for Nottingham, North (Mr. Allen).
§ Mr. Graham Allen (Nottingham, North)
I thank the Home Secretary for his generous offer to improve the Bill in Committee. Will he comment on the fact that the Bill may be with us for 20-odd years but we could not find six weeks in which to perform even more thorough pre-legislative scrutiny? If we had done that online, it would have involved police officers, probation officers, court officials, victims and witnesses, who would have made a great contribution.
I know that my right hon. Friend is constrained by the fact that the carry-over provision does not come into effect immediately, but will he undertake to ensure that any future Bills of this nature, which are very amenable to public participation, will go through full pre-legislative scrutiny, including online consultation to involve the public, who are so concerned about crime?
§ Mr. Blunkett
In principle, the argument that where we can have pre-legislative scrutiny, we should, is unanswerable. I hope that the White Paper gave people an idea of our intentions and enabled them to respond. I know that many people have been debating these issues for a long time, but my hon. Friend's point is well taken. I shall give way to my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), and then I must make progress.
§ Mr. Hilton Dawson (Lancaster and Wyre)
Does my right hon. Friend agree that the Bill could be improved if we took the opportunity to draw a much clearer distinction between children and adults and set the defining age at 18 rather than 14, 16 or 17? Would that not help us to make a clearer and good response to last week's judicial review, which held that the Children Act 1989 should apply to under-18s in custody?
§ Mr. Blunkett
We are all concerned to achieve substantial improvement in the juvenile estate. As the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Leeds, Central has said publicly, we shall introduce measures, not least in relation to the judgment given earlier this week. We are mindful about getting that right. It is important that we intervene at an earlier stage rather than rely on the correctional services to deal with youngsters. We have done important work in establishing the Youth Justice Board, and improvements in correctional services in recent years, if overdue, are extremely welcome.
915 Departments and agencies, both locally and nationally, are working together on, for instance, Splash schemes and their related support services in Connexions, which made an enormous difference over the summer to the level of criminality. In street crime areas with preventive diversionary programmes, there was just over a 20 per cent. drop in recorded crime, compared with a 5 per cent. drop in similar areas without such programmes. There is a lot to learn from intervening at that stage, providing alternative activities and reducing opportunities for crime. I want to put that on record because criminal justice reforms tend to deal with the horse once it has bolted past the stable door. We need to make better progress on prevention in the first place—that is true of rehabilitation as well.
We have done quite a lot with youth justice. Not only have we developed the Youth Justice Board, but we have fulfilled our pledge to halve the time it takes for young people to pass from arrest and to sentence. Initially we got that down to 71 days, but we have now got it down to 63 days—a tremendous improvement on the previous time. There has been a 14.6 per cent. reduction in reconviction rates for that age group in the new reformed system of youth justice. We have introduced intensive treatment and supervision orders and have done work on tagging and home detention curfews. We need to bear all those things in mind when considering what is possible and how we may achieve improvements.
This afternoon, I appeal to people with a long-standing professional involvement and interest to play their part in making the Bill better and ensuring that the reforms are carried through. In the Queen's Speech debate, I said that the Law Society had been positive. When I addressed its annual conference, I was heartened by the way in which its members were committed to assisting us with reform. I again appeal to people inside the system to work with us, not against us, to ensure that we bring this programme into the 21st century, as it is important for the protection of the public and the credibility and standing of the criminal justice service as a whole. We should acknowledge that, together, we treasure our traditions. Some we will remember with nostalgia; others we will bring carefully from medieval England into the 21st century; all of them we will treat with care. I accept what has been said in the House on a number of occasions—we should change what exists with care.
Not everyone agrees on the central objective of the criminal justice service. I believe that, above all, it is a search for truth. We are trying to get to the truth on behalf of victims and the wider community. Unless that objective is at the heart of the system, we shall never protect victims in future and will never have a culture in our communities that accepts that order and stability, as well as people's security in their homes and neighbourhoods, is the paramount job of any civilised Government.
§ Mr. Patrick McLoughlin (West Derbyshire)
Serious cases of miscarriage of justice have done much to damage the criminal justice system. During consideration of the Bill, I ask the Home Secretary to examine the operation that was set up by the Derbyshire constabulary—it was 916 called Operation Noble—in the reinvestigation of the Wendy Sewell murder, following the release of Stephen Downing about 27 years after being convicted, the conviction having been found unsafe by the Court of Appeal. Will the right hon. Gentleman take it from me that Operation Noble has been far sighted and has enabled the chief constable to reinvestigate a serious crime, involving all those who were concerned in the case? Operation Noble should be examined by other police forces throughout the country.
§ Mr. Blunkett
We would all be pleased to learn lessons from that operation and to reflect on improvements. It is not often that I pay tribute to a measure was enacted under Baroness Thatcher's notorious reign.
§ Mr. Blunkett
I will go on. I shall dip a toe in hot water. By 1984, it had been recognised by everyone that there were major problems. The Police and Criminal Evidence Act 1984 and the development of the PACE code since have been important and welcomed by everyone. We need to build upon that in a sensitive way. We are not sweeping that aside in introducing the Bill. We need to be able to enhance and modernise a learning experience over the past 18 years. I welcome the way in which the Derbyshire police have approached the Downing case.
I was about to reflect on a point about protecting the public and getting the measure of what we are about in the Bill. There are those who have almost come to the conclusion that Parliament is a threat in terms of the way in which the judiciary works or in terms of the innocent fearing conviction. I do not believe that a democratically elected Parliament is a threat. I think that the threat lies with people committing crimes on our streets and in our homes. I believe that being able to hold us to account for what we do and to demand change from us—the public are able to expect us to deal with these issues, including sentencing policy—are pluses in persuading people that democracy is worth sustaining, that Parliament is worth listening to and supporting, and that it is worth participating in our elections. If people believe that nothing can be changed, that nothing can be improved and that we must be hands off because we are frightened of dealing with these issues, and if they consequently turn away from our democracy and our Parliament, we shall all be the losers.
§ Mr. Bob Blizzard (Waveney)
I shall give my right hon. Friend an example from my constituency of a 19-year-old who is a persistent young offender. He had five previous convictions involving 11 offences. In May, he was fined £100 for burglary. In September, he was arrested for driving while disqualified and having no insurance. He was bailed and then arrested for the same sort of offence two days later. When he returned to court, he was given 100 hours of community punishment. Does not this sort of sentencing anger the victim, demoralise the police and undermine whatever confidence the public have in the criminal justice system? Will my right hon. Friend give me an assurance that the Bill will get to grips with that sort of sentencing?
§ Mr. Blunkett
Yes. The extension of intensive supervision, the tagging measures, the provisions on bail 917 that are crucial to credibility, will all make a substantial difference. It is regrettable that every hon. Member could give a similar example.
Acquitting the innocent is critical; convicting the guilty is vital. I shall not use many soundbites in my speech, but ensuring that the scales of justice pass the trading standards test in the 21st century is important.
§ Mr. Heathcoat-Amory
I thank the right hon. Gentleman for giving way with his usual courtesy. He spoke eloquently about the powers of the House to make changes. His proposals include removing the double jeopardy rule and providing for the retrial of serious offences. I oppose that change, but I agree that it should be a matter for the House. Why, then, have the Government signed up to the European Union charter of fundamental rights? Article 50 explicitly forbids retrial and protects the double jeopardy rule. Why do Ministers on the Convention on the Future of Europe argue for the charter to be made legally binding? That would undermine the House's discretion and its ability to make the changes that the Home Secretary advocates.
§ Mr. Blunkett
I do not believe that the charter prevents that. I would be against signing into European statute or our laws anything that interferes with our rights. That is why I oppose a European public prosecutor and will argue vehemently against the extension of powers in the European Union that infringe our right to introduce measures such as those that we are debating.
Some Members of the other place claim to be on my side but say the most extraordinary things. For example, they claim that the Bill was developed from a focus group. I am happy to plead guilty, because one focus group did influence me. It incorporates 82,000 men, women and children; I regret that not all of them were eligible to vote in the last general election, but they constitute the population of Sheffield, Brightside.
Those who hold surgeries, are accountable to their electorate and receive representations day in, day out in correspondence to their constituency offices, have a different view from those who have never held a surgery, are accountable to no one and, in some cases, picture matters from a great distance. They may be travelling the world when events pervade our consciousness. I ask those who attack us day in, day out, on television, radio and in the press, as calmly and reasonably as I can, to return to the world in which we live and that our constituents inhabit.
§ Mr. Andrew Miller (Ellesmere Port and Neston)
Would my right hon. Friend include in his focus group my 83-year-old constituent who has been terrorised? Her windows have been shot at with air gun pellets, but the system has given her no support. Is not she a member of the sort of focus group to which we should listen?
§ Mr. Blunkett
Yes. I hope that our debate on antisocial behaviour will be as sensible as this afternoon's discussion.
918 Modernising and improving are a necessity and a promise, not a threat. I want to go through the aspects of the measure about which we agree and disagree. All three major parties as well as the minor parties agree on the bulk of the provisions. We will focus on some aspects that have received public attention, but I want to make it clear that the provisions that engender the greatest heat are not necessarily those that encapsulate the biggest changes.
Some aspects of the Bill are controversial. Hon. Members will refer to that now, in Committee and in the House of Lords. However, many other provisions will be instrumental in massively improving the system, its timing, its sensitivity and its ability to respond to the needs of victims and witnesses.
Parts 1 and 2 set out the reforms and modernisation of the codes established by the Police and Criminal Evidence Act 1984—the PACE codes—and of bail, in the context of the issue I mentioned earlier, and provide the opportunity to look at additional powers in the future. These measures are all intended to ensure that the police can do their job more effectively and, I hope, more fairly. Part 3 is about conditional cautions and about rehabilitation, diversion and proper enforcement measures, and the work of the Crown Prosecution Service. Part 4 deals with the relationship between the police and the CPS in relation to charging policy, and we are pleased that the experiments have been successful in developing a new role for the CPS in this area. I hope that it will work effectively in the future.
Part 5 deals with disclosure. We are simply seeking to avoid any scope for abuse of the system, to ensure that information requirements for the defence are placed on a par with those of the prosecution, and to deal with the way in which witnesses can be protected, including ensuring that the development of knowledge about the list of expert witnesses on which the defence will draw will be available to the prosecution. My hon. Friend the Member for Sunderland, South (Mr. Mullin), the Chair of the Select Committee on Home Affairs, has been very generous in not intervening on me yet, but I would like to refer to his input in this matter. The Committee made the suggestion that we might develop a code that could incorporate measures to offer protection if there were any suggestion of a defence witness being leant on in the intervening period. I am happy to give the assurance that we will be prepared, in Committee, to provide for a code.
The way in which we are moving this afternoon, and will move in Committee, and the way in which the Home Affairs Committee dealt with the code's immediate look—it did not have a lot of time, but it has done its job very effectively—demonstrate the way in which we might proceed in the future.
§ Mr. Mullin
I am grateful to my right hon. Friend for that assurance. I think that it will resolve a problem. To make this measure effective, however, it will be necessary to ensure that defence witnesses whom the prosecution wish to contact should be interviewed only in the presence of a defence solicitor, and, preferably, that the interview should be recorded; otherwise, the measure will undoubtedly be abused.
§ Mr. Andrew Turner (Isle of Wight)
Does the Home Secretary accept that my focus group—or, certainly, some of the constituents in it—are concerned about the other side of the coin, which is that the technical failure to disclose a single piece of evidence might invalidate a trial? Will he assure the House that there is no intention that that situation should arise unless a serious miscarriage of justice has followed?
§ Mr. Blunkett
I think that trial judges would want to use common sense in those circumstances, and we would encourage them to do so. I am pleased that the hon. Gentleman agrees that we should be concerned with justice and seeking the truth, rather than with technical knockouts. I have said that before and I believe it very sincerely.
Part 6 is about streamlining the process, cutting down on wasted time, and speeding up the way in which we operate the system. It is also about encouraging early pleas, to avoid the prevarication, the waste of enormous resources and the delays that not only inconvenience us and cost us dearly—£80 million, as has been mentioned in the House on a number of occasions—but are detrimental to persuading witnesses to come forward and to stay in the system. I hope that we can all get this right. Part 7—
§ Mr. Banks
I am sorry. I would have waited until my right hon. Friend had made his point on part 7. Obviously, schedule 22 is linked to that.
Is my right hon. Friend fully satisfied that the proposed removal of the right of Members to refuse jury service does not conflict with the rights and privileges of the House? It has long been held that our duties in this place supersede the obligations of attendance in any other court. I must refer him to Holford's case of 1826 and the subsequent report of the Committee of Privileges. The Bill refers to rights that are very much attendant on the privileges of this place, so I hope that he has consulted on the matter. If not, perhaps he will consider doing so.
§ Mr. Blunkett
I would not dismiss out of hand the point that my hon. Friend raises, but although it would be an interesting experience for the Home Secretary, it would not do us any harm to be exposed to the vagaries of what is going on in various services that we use, which is the case regularly in other areas of our lives. We—certainly those of us who get a recess—might be able to serve on a jury.
§ Mr. Blunkett
Well, we may be able to defer to a point at which it becomes possible for us to perform such a 920 service rather than refuse altogether. We need to examine the point with an eye to not avoiding what we ask of others. Of course, I suggest in the Bill that certain trials go on for so long—we will come to the relevant clauses under part 11 in a few moments—that they bedevil people's lives generally. We would be as sympathetic to ourselves as we would be to them.
I want to make a point on part 7. There has been a debate, not necessarily among Members of the House, but certainly elsewhere—again, I look across Central Lobby—as though we were introducing the previous mode of trial Bills and as though the 20,000 jury trials that were allegedly affected by those Bills will be affected by this Bill. Of course, we are giving people not only the right to opt for jury trial, as they do now, but the right to opt for a judge-only trial, which they do not have at the moment. We are giving people more rights, not taking them away.
As for very difficult, prolonged and complex trials—serious frauds and complicated commercial cases—we estimate that there will probably be a maximum of about 100 a year. There will be more when people themselves have opted to go to trial. Roskill in 1986 and Sir Robin Auld made suggestions on serious fraud and what it means. It is worth reflecting for a second on what happened in the Maxwell trial: there were 131 working days in the first, and the second and third trials, which were scheduled, never took place. That followed 60 days of pre-trial work, which took up the jury's time.
§ Mr. Blunkett
I will in two seconds. Let me take the point further. The trial judges were both concerned about the impact of that. In fact, the second trial judge made it absolutely clear that he believed that there was a major problem in terms of the jury in the first trial being able to assess the full weight of the evidence in that trial, because they were not able to hear the second and third trial evidence. They were unable to do so because, as the first trial judge said, they could not face the likelihood of those three lots of evidence being put together in one trial. It was unthinkable, he said, that it was possible for that to be done. That is why he separated matters into three different elements, two of which were never heard for the reasons that I have enunciated. Therefore, that is why the second trial judge recommended that such trials should in future be heard by a judge rather than by a jury.
§ David Winnick
Like most members of the Home Affairs Select Committee, I entirely accept that there is a strong argument for most serious fraud cases, of the kind referred to by my right hon. Friend, to be heard without a jury. There is, however, a worry—touched on by my right hon. Friend—that the Government want, or he as Home Secretary somehow wants, to weaken the jury system. I will not use the word "undermine". Does my right hon. Friend accept that the jury system has served the country very well—and long may it continue?
§ Mr. Blunkett
Yes, I do accept that—which is precisely why I, along with the Lord Chancellor and the Attorney-General, decided not to pursue the proposals in the two mode of trial Bills.
921 I will not take offence this afternoon, or Melanie Phillips and Anne McEvoy will have another go at me in the papers later this week. I would be really upset and it would really throw me. I would be timorous at the Dispatch Box. But it takes the biscuit that those who argued vehemently against those Bills cannot distinguish between this Bill and legislation that is no longer being presented to the House. I know that my hon. Friend is not one of those people; I just wanted to make the point, and I feel better for it.
§ Mr. Tom Levitt (High Peak)
Some of us, not least those who were on the Home Office team at the time, supported the mode of trial Bills. One reason for that was a wish to prevent abuse of the system whereby cases for which jury trial was not appropriate were referred to juries in an attempt to get someone off with a shorter sentence. Will my right hon. Friend confirm that although such measures are not being pursued in this Bill, it will be able to deal with some of the opportunities for abuse of the system by lawyers? Will he stress that the system exists to provide justice for victims, not justice for lawyers?
§ Mr. Blunkett
Amen to that. Indeed, that is the thrust of what I am trying to do.
I hope I have picked out the best parts of what was in other respects an excellent Bill from my right hon. Friend the Member for Blackburn (Mr. Straw). The aspects that gained it support—enunciated just now by my hon. Friend—are precisely the aspects that I am supporting today. We are, for instance, extending the role of magistrates, ensuring that people can opt for jury trial and introducing measures to stop people from interfering technically with the process of seeking after truth.
§ Mr. Marshall-Andrews
As the Home Secretary knows, juries convict in 85 per cent. of serious fraud cases, or at any rate there are convictions in 85 per cent. of such cases. That is considerably above the norm. Does the Home Secretary accept what is the view of the vast majority of judges and lawyers in serious fraud trials—that juries have no problem whatever in dealing with the matters put before them?
§ Mr. Blunkett
It is not a question of whether we can immediately lever up the level of conviction—although there are issues in regard to what cases are currently brought forward, under the current system, and how they are brought forward. That also involves the reforms that we seek to make, including reforms of the Serious Fraud Office. No, it is a question of what juries must face. I gave an example of that. If my hon. and learned Friend and others think that the Maxwell trial is not a good example, I am sure they will say so during the Bill's passage; but I believe that where there is a problem, we should try to address it. We must take into account complexity, the length of time involved in jury service, and the enormous burden placed on individuals 922 who would not wish to serve on a jury in such circumstances. We must take account of those factors if we are aiming for justice.
§ Mr. Lilley
The two Bills that the Home Secretary rightly discarded were justified by arguing that it was wrong in principle for the defendant to have the right to choose jury trial. Now he is saying that it is right in principle for the defendant to have the right to be tried not by jury, but by a judge. If that amounted to a change in his principles, I would be happy, but is it not a common feature that he and the Government favour only those measures that result in fewer jury trials?
§ Mr. Blunkett
I shall turn the point around. If the right hon. Gentleman's argument concerns choice and I am providing greater choice, I can hardly be accused of doing something heinous. Either he is arguing for choice or he is not, and if he is, he can rejoice. I am obviously a convert to choice, so I had better plead guilty to that now to save the House a lot of time, and to save a lot of money in fees for lawyers representing my interests.
Part 8 of the Bill is straightforward. It is concerned with the use of technology, and it brings us into the 21st century. Part 9 deals with prosecution appeals, and will enable, before and during trials, an appeal against a stop. Part 10 deals with double jeopardy. I know that controversy surrounds this issue, on which my party made a manifesto commitment, and that it will be argued closely. We believe that, given our approach and the safeguards that we have built in through the Crown Prosecution Service and the Appeal Court, it will be possible to find a way to implement this measure without denying rights.
I am painfully aware that people are worried that publicity will make matters difficult for juries; however, we must trust them. They have to assess the evidence and the facts. These points are true of all trials. A lot of publicity surrounds high-profile trials in the first place, never mind those in which new DNA evidence and forensic evidence has come to light, and in which modern techniques make it possible to return to failed evidence. I believe that, if we are careful and the safeguards are right, we can trust the jury to get it right, and that we can trust the Appeal Court not to allow through the gateway presentations of evidence that do not stand up to scrutiny.
§ Helen Jones (Warrington, North)
All Members accept that double jeopardy must be handled very carefully and that appropriate safeguards must be put in place, but does my right hon. Friend recognise that concern nevertheless exists in the community that people are allowed to go free, even though new evidence points to their having committed a very serious offence? If there is to be confidence in the criminal justice system, there must be an assurance that, in such cases, the evidence will be weighed very carefully and that, if necessary, such people will face another trial.
§ Mr. Blunkett
Yes, and I cannot but agree, because that is the thrust of this part of the Bill. My hon. Friend 923 enables me to demonstrate that there are lawyers whom I like very much, and who are really good friends of mine.
§ Annabelle Ewing
I thank the Home Secretary for giving way. He referred to the proposed reporting restrictions on retrials south of the border. Significant concerns have been expressed in Scotland—including by the fourth estate—as to whether press-gagging orders made in England will be imposed on Scottish courts. If that is the purport of the Bill, does the Home Secretary accept that the best place to consider such significant changes to Scots law would be in the Scots Parliament, not in Westminster?
§ Mr. Blunkett
I think that the Government should, with the Executive of the Scottish Parliament, seriously consider how to proceed. I should be happy to do that. I put my hands up and say, as I always do, that if I had a straight answer, I would give it.
§ Simon Hughes
The Home Secretary properly understands the difficulties that could arise with a retrial if press coverage of the first trial remains in the minds of a future jury. He knows too that there are wider concerns about the press coverage of trials the first time around, which begins from the moment a person is arrested. We can all think of such cases, without needing any reminder. Does the right hon. Gentleman and his colleagues across Government have in hand any review of the way in which the press can at present get away with condemning people, in effect, from immediately after their arrest right through to the end of the trial? Is that an item on the agenda? It is a big concern across the country.
§ Mr. Blunkett
I take the hon. Gentleman's point. The Attorney-General has warned the press about the matter, and he repeated the warning only recently. There have been causes célèbres in which press coverage has made it very difficult to pursue a trial properly. I am sure that that has been inadvertent, but it is also inept. I have in mind an example of that. We need to be mindful of the problem.
The hon. Member for Southwark, North and Bermondsey (Simon Hughes) raised a substantive point at the beginning of his question. The difficulty that he described arises when a trial moves from one court to another. Judges must bear in mind the influences affecting the case.
There is a myth about judges' lives, but I shall be careful about how I phrase what I want to say. There are people who sometimes suggest, mischievously, that judges live in a cocoon, a different world. I am not one 924 of them, as I believe that judges could be influenced, if they were not careful, by what they read and heard. They steel themselves against that possibility and are able to accept the facts as they are presented. They make a judgment on the basis of the facts, and advise juries to do the same. They would advise retrial juries in the same manner, and we trust juries—we have all just agreed that we do—to judge according to the facts.
§ Mr. Blunkett
I will give way one more time to my hon. and learned Friend, as a generous gesture to someone who took the trouble to table an amendment against giving the Bill a Second Reading.
§ Mr. Marshall-Andrews
I am very grateful to the Home Secretary. May I say straight away that I do not want to attempt to inveigle myself into the category of lawyer that he mentioned a little while ago? I know that I certainly will not so inveigle myself.
Will the Home Secretary accept that many people are worried about the double jeopardy proposals? Their concern arises not from some liberal adherence to the rights of defendants, but from the fact that double jeopardy is the primary rule that discourages rotten policing. If a witness simply fails to come forward—and there has been a topical example of that recently—will that be sufficient grounds for an application to reopen a prosecution?
§ Mr. Blunkett
The Attorney-General and the Appeal Court will assess whether there is clear and compelling new evidence in a case. That double-locked gateway will mean that the situation outlined by my hon. and learned Friend will not arise, However, I will make representations on his behalf as well in the future, although they might not be quite the same as the representations on behalf of my hon. Friend the Member for Warrington, North (Helen Jones).
§ Mr. John Burnett (Torridge and West Devon)
The Law Commission's report into double jeopardy made it clear that cases should be retried only when evidence did not become available until after the original acquittal. Does the Home Secretary agree?
§ Mr. Blunkett
Evidence that is clear, compelling and, in particular, new falls into that category. I am concerned with the word "new". No new evidence would have been available at the original trial.
§ Mr. Blunkett
I will, as I love the right hon. Lady and I want her to sharpen her teeth for future work on the Select Committee on Home Affairs.
§ Miss Widdecombe
I am very grateful to the Home Secretary for giving way. I invite him to draw a distinction between "new" and the phrase "could not possibly have been available". If, for example, the new evidence is a scientific advance such as DNA, which 925 simply could not have been applied before its discovery, that new evidence could not possibly have been available at the trial. However, if new evidence is brought that was not available but, with more diligent policing could have been, there is a distinction between the two. I am sympathetic to these aims, and I think that the right hon. Gentleman is being invited to make that distinction.
§ Mr. Blunkett
I knew that it was a good idea to give way because I do not disagree with the right hon. Lady. I do not believe that we would want failure of the investigation to be used and I do not believe that the Court of Appeal would allow it to be used. I did not respond by acknowledging that a witness failing to come forward would not, in any circumstances, be likely to be agreed by the Attorney-General and the Court of Appeal for this reason: even with the internet, mobile phones and satellite television, someone could return from abroad who could not be interviewed at the time as opposed to not being interviewed because of failure. That is why I was not definitive on the example that was given. It is important that we allow the Attorney-General and the Court of Appeal to do their job, within the parameters of this afternoon's debate and the assurance that I hope I have given, that failure of investigation—incompetence, in other words—should not be the test. I shall turn now to part 11 because I am sure that we will come back to these issues in Committee, on Report and beyond.
Chapter 1 of part 11 is about relevant evidence and bad character. Chapter 2 is about reported evidence, material in writing, previous statements being available and witnesses being able to use their statements rather than simply testing their good memory, parrot-fashion. Chapter 3 refers to miscellaneous matters.
We believe that if we are careful and proportionate, we will get this right. We believe that in recommending that we should ensure that when a husband is accused of battery or rape and the defence is that he has been sweetness and light to his wife, the evidence available, including arrest or conviction, should be relevant. That is an extension of and consistence in applying what the Law Commission recommended and, to a moderate degree, what is already practised but is spasmodic and inconsistent in its application.
Part 12 is about sentencing and part 13 covers miscellaneous activity.
§ Mr. Gordon Prentice (Pendle)
I am not a lawyer, but am I the only person who is astonished at the sentences that are handed down to people who pervert the criminal justice system by deliberately lying to courts? The maximum sentence for perjury is seven years. Does anything in the Bill offer advice to the courts as to the appropriateness of sentences that allow people who have perjured themselves to go to an open prison with days off to go to the pub and make social visits miles and miles away from their prison? It is a serious point.
§ Mr. Blunkett
I am pleased to have given my hon. Friend the opportunity to make his point but I shall not be drawn into discussing it this afternoon, partly 926 because it is not directly relevant to the Bill and partly because recently more heat than light has been shed on the issue.
§ Mr. Michael Jack (Fylde)
In paragraph 653, on page 133 of the explanatory notes kindly provided with the Bill, reference is made to the extra pressure on and costs for the Prison Service both of the measures to which the Home Secretary has already referred and those to which I think that he is about to refer. Can he reassure me that resources will be available to deal with those pressures? Secondly, will he address the question raised by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) during Prime Minister's questions, when she rightly referred to the overall pressure on prison places? Thirdly, will the right hon. Gentleman assure me that resources will be devoted to dealing with the problem of recidivism? Every provision in the Bill will be as nought if we do not stop people going back into prison because they have reoffended.
§ Mr. Blunkett
We agree wholeheartedly about positive action in relation to rehabilitation and the avoidance of reoffending. Yesterday, we were dealing with a revised report and recommendations on the relationship between drug addiction and the criminal justice system. That is part of the preventive process, as are the signals that the measure will send out on the sentencing of recidivists.
The right hon. Gentleman asked about resources. Yes, measures are being taken in respect of the probation service. There has been enormous investment—a 50 per cent. increase—as well as the new spending since 1998. The national probation service was established and commenced a year ago last April. In our first Parliament, there was a 20 per cent. increase in prison places and 2,300 extra places were agreed in the Budget last April. Extra money has been agreed for an additional 750 places next year, so there will be more than 3,000 extra places. As part of next year's spending increase, we have just agreed that there will be £275 million for the Prison Service for improvements and extra places. There will be £70 million for the probation service.
Of course, we face a challenge. In the long term, some measures will increase pressure on both services. The custody minus proposals, which are close to my heart because I invented them, will, I hope, provide a clear signal to people not to reoffend because if they do, they will immediately go to prison. People will also have an opportunity to redeem themselves because under the proposals they will not be sent to prison immediately for a first offence or for an offence that should be dealt with in the community.
We should all agree about that because, as I have said before, we should send people to prison only as a last resort. The proposals will help to put the sense back into sentences.
§ Mr. Blunkett
In a moment.
I want to deal with a misunderstanding. The words "mixed message" have replaced "spin" and "command and centralisation" as the latest mantra and are 927 supposed to be opposite to centralised diktat—the predetermined spin on the pager. Recently, I have met judges who cannot understand the difference between a clear message that violent, dangerous sex offenders will be sent down for longer, supervised more intensively for longer, and that for the most heinous offences life will mean life, and the fact that for first time, lesser offences we shall try to redeem the situation immediately by giving people intensive supervision in community sentences, as well as making reparation to victims.
§ Mr. Blunkett
I shall give way first to the hon. Member for Buckingham (Mr. Bercow) and then to my hon. Friend.
§ Mr. Bercow
Given that schedule 20 provides for an increase in penalties for drug-related offences, will the Home Secretary confirm whether he stands by his statement to the House in July of this year that cannabis will be reclassified from a class B drug to a class C drug by July of next year? In the process of confirming that, what would he say to Roger Howard, the chief executive of DrugScope, who says that, far from saving police time and producing a more logical drugs policy, the law that the right hon. Gentleman proposes will, in fact, make things more severe and confused than they were previously?
§ Mr. Blunkett
No, I do not accept that aspect of what DrugScope has said because the residual powers of arrest remain to avoid public order disturbance, to avoid young people being enticed into drug taking and to avoid people trying to evade being picked up as dealers by pretending that they are merely users.
Guidance will be provided through the chief constables to make the position absolutely clear at the beginning of next year, in good time for the new measure to take effect, in the same way as we would expect to do with other class C illegal drugs if they were being used in a way that made nonsense of the law and a monkey of the police. Some people are prepared to do that, and we do not want to stand by and let them do it.
§ David Winnick
Public anxiety is arising from the decision of the courts that they, not the Home Secretary, can decide whether someone who has been sentenced to life imprisonment should be released. I am sure that he thoroughly agrees that there are those who have been convicted who should never be released under any circumstances, so is there any way in which he can assure the public—not all these cases are high profile by any means—that those who should not be released under any circumstances will not be?
§ Mr. Blunkett
Yes, I agree. That is why there is the new role for Parliament in lesser offences through the establishment of the sentencing guidelines council. I hope that the influence of Parliament will be expressed through the Select Committee on Home Affairs. We are talking about the Lord Chancellor, in consultation with the Home Secretary, determining the exact avenue.
928 I am recommending that the Select Committee on Home Affairs should have a role for the first time in response to the Anderson judgment to set up a framework, determined by Parliament, in which principles will be laid down. Judges will use discretion within that framework and those principles, which will ensure that life means life when we say it does and that the most heinous crimes are dealt with properly.
As the right hon. Member for Maidstone and The Weald (Miss Widdecombe) will know from her time in the Home Office—I think that we agree on this—it is not always the high-profile cases where tariffs are set. I rarely speak about these matters, but let me say very clearly that I have dealt with cases where my staff have wept when reading on to cassette for me what has been done to children and other human beings by the scum of the earth who should never leave prison. If we get that right, the public might have greater faith in us—they rely on us—and in the judicial system to protect them and to use what all the rest of us would call decent common sense. That is not vindictiveness; we are laying down for the first time ever the particular objectives of sentencing.
We talk about punishment, protection, reducing crime, reparations and, of course, rehabilitation, so we are laying down new guidance on why we are doing things. Through the sentencing guidelines council and Parliament's new influence we are laying down the new the ways in which we are trying to make sense of sentencing. In the framework and principles, we are laying down how to deal with cases and principles, as with the Anderson judgement. Of course, we have a new range of sentences: the intermittent sentence, which will help at the lower end, and the indeterminate sentence, which will help at the upper end, with intensive supervision and with the requirement that people should not be released at the upper end unless it is safe to do so.
§ Mr. Oliver Letwin (West Dorset)
I am not clear. Is the Home Secretary signalling that the Government's legislative solution to the problem posed by the Anderson judgment will be entered as amendments to the Bill, or will it be in separate legislation?
§ Mr. Blunkett
The right hon. Gentleman rightly pulls me up. I should have said—I was responding to my hon. Friend the Member for Walsall, North (David Winnick) at the time—that we will bring forward amendments to the Bill and seek to give the official Opposition as much notice as possible of the detail. I have asked for that to be done as quickly as possible. Clearly, I will inform the Committee of that, and I will be happy to hear views in response. Clearly, on this occasion, we are all dealing as quickly as we can—it is not a failure of desire—with the consequences of that judgment. I have clearance to make sure that we can do that in this Bill. People will want that, not least because we want those who would otherwise seek to have their tariff readjusted to know that that will not happen outside the parameters of the new legislation. Their appeal will not be heard therefore until the legislation, in whatever form the House agrees it, has been passed. It will be judged within the new framework and the new guidance. I hope that that helps the House to understand the process by which we intend to proceed.
929 I think that I have spoken for too long.
§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
I am encouraged by what the Home Secretary said about prison being the last resort and the need for further use of constructive community penalties. Does he share the view of Professor Rod Morgan that there is a danger that the lower courts are using community penalties far too often when a fine would suffice?
§ Mr. Blunkett
Yes, I do agree with that. The Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper), has taken decisive steps, and I very much welcome what she has done. We really need to make sure that we collect the fines when they are levied. When we say that there is a punishment, people must know that it happens. That is true of a number of issues dealt with in the Bill. The House will be unanimous in its views on the punishment fitting the crime, punishment being applied and commitment to enforcement. The court system, the Crown Prosecution Service, the Lord Chancellor's Department and the Home Office are committed to making enforcement work. Nothing is more likely to undermine confidence in the service as a whole and to send the wrong signal, particularly to young people creating mayhem on our streets and our estates, than the belief that there is no enforcement behind the law that we claim exists to put our streets in order, to ensure stability and security and to give confidence to our citizenry. We are all in favour of that. What we seek to do in the Bill—it is a partial step, as legislation alone will not make it work—is to provide the tools to those inside the service and throughout the court system, including the police, to ensure that people can at last have confidence that when we say it, we mean it, and, when we mean it, someone will do something about it.
§ Mr. Oliver Letwin (West Dorset)
We are at the beginning of what I suspect will be a long series of debates in this House and in the other place. The Home Secretary has laid out his position in some detail and at length—I do not criticise that; he was generous in giving way for many questions, which was worth while. It is therefore right that I should be relatively brief.
I want to set out our views about the generality of the Bill and to talk about the extent to which legislation is used and, by contrast, the extent to which it may be valuable to concentrate on administration. I also want to tackle the controversial elements that the Home Secretary mentioned: trial by jury, double jeopardy and the character of the defendant. Finally, I shall say a few words about what I understand to be the role of the Opposition—indeed, the oppositions—in this matter.
I have frequently debated issues relating to the generality of the Bill with the Home Secretary and Lord Falconer during statements to the House or in public. We support the general principle of reform of the criminal justice system. When I went to wash my hands before the debate, I was privileged to find an item in the gentlemen's cloakroom in the Lobby.
§ Mr. Letwin
I shall give my hon. Friend the details. I found a small rag, posing as something to wash one's 930 hands on. A pink slip placed on it said that it was "in need of repair". I thought that that was an apt analogy for the criminal justice system, and we agree with the Home Secretary that repairs are required.[Interruption.] I shall return the object in question after the debate. I need hardly fear that, if I were arrested, any fine against me would be enforced.
Measures such as the creation of the Sentencing Guidelines Council and the making of that council answerable in some form to the House and to Parliament are admirable. They are among many such admirable measures in the Bill. I have repeatedly said that the time is long overdue for the progressive codification of sentencing, of the procedures for the giving of evidence and of the procedures for the holding of trials. There is no doubt that the criminal justice system does not command the confidence of the ordinary public, victims, witnesses or, indeed, the professionals that it should command. All that argues for legislation, much of which is helpfully introduced in the Bill.
As I have frequently remarked in the past, this is not the first Criminal Justice Bill to come before the House in recent times. There is no reason to suppose that, alas, it will be the last. Legislation is not easy; it is arduous. However, it is easier than something else, and that something else is the improvement of the administrative systems that make the legislation live in practice.
There has just been some discussion of the enforcement—or rather the almost complete lack of enforcement—in some jurisdictions of fines. However, I draw the House's attention to a separate and parallel topic. Some years ago, the House passed the Police and Criminal Evidence Act 1984, and one of its effects was to require a custody sergeant to be present in the custody suite. When a police constable brought into the station someone who had been arrested, the Act also required the custody sergeant to interview both the constable and the person arrested.
I am sure that the Home Secretary and his colleagues in the Home Office will have had the same experience that I have had in the past year. I have repeatedly been around the police stations of this country and talked to police constables and asked them how they spend their time—very often, their nights—when they are on duty. I am repeatedly told that they spend two, three or four hours queuing outside the custody suite of their own police station because there is a logjam with only one sergeant in the suite. I am told that they sometimes have to take the prisoner in a car—and with a colleague, if that is necessary for safety purposes—to a station further afield to book him in. I do not have, and I understand from unofficial contacts that the Home Secretary does not have, accurate statistics on what proportion of police time is occupied in that fruitless endeavour.
The example is non-partisan. The Police and Criminal Evidence Act was not the fault, so to speak, of the Home Secretary or his predecessor. On the whole, it is an admirable Act. Indeed, it happens to be a Conservative Act. However, it is a fact that it is allied to a failure of administration—not just in one police force or police station, but across the police stations of England and Wales—that is significantly diminishing the ability of an already overstretched police force to apprehend criminals.
931 I have frequently said that the bulk of the problem of our population's failure of confidence, which is very real, in the criminal justice system arises not from the failure of the criminal justice system to convict, but from the failure to apprehend criminals in the first place. Judging by statistics in the British crime survey, which for various reasons understates crime such as retail crime and crime against the young, the likelihood of not being apprehended, let alone convicted, exceeds 80 per cent. When a criminal knows that his chance of not being apprehended is enormous, the idea that criminal justice is an effective system is risible. The problem that confronts us is clearly administrative. I suspect that no amount of additional legislation will cure the deficiency. I do not want, and I am sure the Home Secretary does not want, to abolish the PACE rules, but we need to find a way to address the administrative deficiency that causes people to queue outside the custody suite.
I have chosen just one example of the problem, and I recognise the great difficulty of achieving such an administrative change. The Home Secretary will no doubt taunt me with the fact that I am against centralised control and ask me how I can ask him to do something about it given that he is not in charge of each chief constable, but we need systems that impose pressures on chief constables and police forces in ways that make for sustainable improved administration. We do not have those at the moment.
I do not want to deal with those elements that may provoke detailed consideration in Committee and on which we are broadly agreed. Instead, I want to discuss the controversial elements that will occupy most of the public's attention and most of the time of the House and, perhaps more importantly, of another place.
On trial by jury, I recognise that part 7 does not contain the same measures as those proposed in the draft mode of trial Bill. For that we are truly grateful. I also recognise that some aspects of part 7 are carefully calculated to be minimally objectionable. For example, clause 36, which gives a defendant the right to choose his or her mode of trial under certain circumstances, has been constructed to be minimally objectionable.
Given that the Government have rightly abandoned the mode of trial Bill, and given their desire to be minimally objectionable, why do we need to address trial by jury at all? What is the advantage of so doing and, balancing that, what are the risks attendant in so doing? I do not see the issue as black and white and utterly binary. There may be advantages and risks, and those need to be balanced. I have searched with my colleagues on the Front-Bench team and others, who are learned in such matters, to understand what the great gain is anticipated to be from addressing trial by jury.
The hon. and learned Member for Medway (Mr. Marshall-Andrews) pointed out that the proportion of convictions by juries in serious fraud cases is approximately 85 per cent. I had thought the figure to be 83 per cent. That does not indicate any failure of the system to be able to bring the guilty face to face with their guilt, and I am in no way clear as to how the choice by the defendant of trial by judge rather than by jury under clause 36 will effect great improvement in the criminal justice system. We wait to hear the arguments 932 that may be deployed in Committee and on Report by Ministers to defend the proposition that there will be a great gain in that department, and the same is true of the other clauses in part 7. However, against any such advantages—which, as I said, at the moment I cannot see to be very great—we must set out the danger.
§ Stephen Hesford (Wirral, West)
Is the right hon. Gentleman saying on behalf of the Conservative party that, as a matter of principle, the tribunals that may try serious fraud cases and the like are incapable of delivering justice? Does he object in principle to that new procedure, which will, as the Home Secretary has said, remove from juries the burden of trying massive fraud cases?
§ Mr. Letwin
I am not saying that a new tribunal would be incapable of delivering justice. How should I know? It may be that such a tribunal would be capable of delivering justice; that is not the question that the House needs to address. The House needs to address the question that I am trying to address: is there such an advantage in moving away from a system that has served us a very long time as to justify that move in the light of any disadvantages?
I have asked, and we may hear from Ministers, what great advantages attend. In circumstances where there may be inconveniences for juries, but where juries have repeatedly shown themselves to be capable of understanding fraud trials and of convicting in such trials—indeed, they are more capable of convicting in fraud trials than in others—I do not yet see the force of an argument that starts from the presumption that there is a vast advantage. But is there a great disadvantage? It has to be admitted that the disadvantages to the propositions in part 7 are by no means so great as the disadvantages to the mode of trial Bill. I accept that wholeheartedly. However, I still worry greatly about these measures.
I harbour the thought, and I hope that it is not unworthy, that the Lord Chancellor, like some others, maintains scepticism about the validity of amateurs. He demonstrates that in his attitude to the lay magistracy, a feature of the British justice scheme that has long served us and is now dwindling fast. He demonstrates it also, I fear, in relation to juries. If this House and the other place eventually permit the Government to legislate as they intend in part 7, will we not be laying the ground for precedents that will later be used gradually to erode the scope for trial by jury and to enlarge the scope for trial by judge?
I know from long and bitter experience in dealing with matters European that whenever one uses the argument of the slippery slope, one is told that one is being unnecessarily alarmist and it is pointed out that the measure in question is slight. It is argued that no precedent can be taken from the slight to the major. It is pointed out that the measure that is before us, such as the Single European Act in place of the draft treaty of union, is nugatory in comparison with the horrors that might have been visited on us.
That structure of argument is familiar to all of us who witnessed that debate. Here we move to different terrain, but I fear that the structure of argument will be the same. I am sure that, as we pursue this issue through this 933 House and the other place, we will be told that we need not fear because these measures are in themselves unobjectionable and no precedent will be set. However, I think that a precedent will be set, and I fear that precedent.
§ Mr. Bercow
I strongly agree with my right hon. Friend about trial by jury. I am not a lawyer—I say that as a matter of pride—and my exegesis of clause 36 may be flawed. However, whatever the other arguments about the clause, there is a danger that the Government may inadvertently create new confusion and complexity in subsection (6), which appears to suggest that people who have held office or employment in the administration of the civil or criminal justice system will be denied the right afforded to others to seek a trial without a jury. What is the reason for that?
§ Mr. Letwin
It is delightful that my hon. Friend, whose Buckingham constituency lies close to Beaconsfield, by telepathy understands the very points that my hon. Friend the Member for Beaconsfield (Mr. Grieve) has been making about clause 36 to me for the past few weeks. The clause is indeed inelegant, but I do not want to dwell on that unduly. In response to my hon. Friend the Member for Buckingham (Mr. Bercow), we do not know why that inelegant structure is there.
§ Mr. Miller
As another non-lawyer, may I put the reverse argument to the right hon. Gentleman? In my constituency, a large sum of money disappeared from a pension fund. The police, looking at a chart as big as the Table in the Chamber, eventually told me, "If it's legal, why aren't we all doing it?" They then concluded that there was not sufficient evidence to convince a jury. Either it is legal and we should all be doing it, or it is not legal and the current system for bringing such cases to justice is inadequate.
§ Mr. Letwin
The hon. Gentleman misunderstands me. If there was not enough evidence to convince a jury, that is an extremely good reason for the police and the Crown Prosecution Service not to bring a prosecution. On the whole, I agree with the old-fashioned concept that convincing juries of guilt is an extremely important part of the criminal justice system.
§ Simon Hughes
May I make one final point on this issue? Does the right hon. Gentleman agree that one criticism of some charges being tried in judge-only trials and others in jury trials is that that would create a two-tier justice system? If someone were charged with serious fraud or another offence specified in the Bill, they could be convicted by a judge, not the larger population. A different view would be taken of sentencing, and the public confidence that stems from people like us or members of the wider public serving on juries would be 934 lost. For the first time, not at the defendant's instigation, a judge alone would judge guilt and innocence in the most serious cases in the land.
§ Mr. Blunkett
If the right hon. Gentleman does agree, that puts the stipendiary magistrates and the higher courts in an interesting position. They do not just confirm sentencing—sometimes they make that judgment. By agreeing with his friend, the Liberal Democrat spokesman, the right hon. Gentleman is going down a very dangerous avenue indeed.
§ Mr. Letwin
That is interesting—I think that the Home Secretary is going down a dangerous avenue. Stipendiary magistrates, he will recall, no longer exist.
§ Mr. Letwin
Indeed, I do not quibble about that. They are now district judges because the Lord Chancellor is keen to replace people whom he apparently considers dreadful amateurs with serious professionals who will be efficient district judges. Let us call them district judges and let us have efficiency by all means. Let us have them concentrated in great centres. No more rural courthouses staffed by amateurs—they are to be replaced by large, centralised courthouses staffed by serious professionals: district judges. I have nothing against district judges; indeed, my hon. Friend the Member for Woking (Mr. Malins) is a district judge. However, I believe that the amateur has a great role to play.
In addition to agreeing with the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), I fear that a precedent will be set and what will happen next is that those like the Lord Chancellor who fear the amateur will argue that efficiency has improved and that we should slightly widen the scope. So, by slow degrees over the next decade or so, we will find those of like mind persuading us that the jury system is actually old hat. I hear the word "modernisation"—I hear it loudly ringing in my ears, and I fear it in this context.
§ Miss Widdecombe
Does my right hon. Friend accept that there is another dimension? By and large, juries are anonymous—no one knows exactly who has sat on a jury. When there is a very big and controversial case, where there may be a great deal of public and tabloid pressure for a particular outcome, at least with a jury there is no individual pressure inasmuch as someone will have to answer to the public afterwards. A judge, of course, is fully identifiable. Could this be just the first step—I hate to use this phrase—on a rather slippery slope towards politicisation of the judiciary?
§ Mr. Letwin
First, my right hon. Friend, as so often, makes a very telling point with which I wholeheartedly agree. Secondly, the fears that she raises—although I will not go into them in great detail now for obvious reasons—range far more widely. The pressures leading to the politicisation of the judiciary from the scope of action given through the Human Rights Act 1998 and a wide range of international agreements, to the extent that we see in the Anderson judgment, is leading 935 towards calls for parliamentary scrutiny or even election of judges. I fear the whole trend of thought that we see before us today in the British judicial system.
I am unashamed in wishing to defend the principle of trial by jury, even against slight inroads that may in themselves appear relatively unobjectionable.
§ Stephen Hesford
I am grateful to the right hon. Gentleman, who is generous in giving way for a second time. What does he say about clause 38 and the problems with jury tampering in respect of safeguarding the rights of victims in serious gangster crime, when jury nobbling in some parts of London is rife?
§ Mr. Letwin
We have very seriously considered that matter. It is the most serious accusation that can be made against the jury system in a given case. At present, juries are heavily protected when there is tampering. I am open to persuasion, as we move through the Committee stage, that we have not fully grasped the situation. However, we have considered whether there is evidence available that after the trial jurors who have convicted someone—but were protected during the trial because of tampering—have been subject to pressure, or worse. Were that to be proven on a significant scale, I would accept that it would constitute a significant argument for clause 38. I am not aware of such evidence at present. If the jury is adequately protected during the trial, and if there is no substantial evidence of jurors after the trial being subject to intimidation, and if jurors know that that is the currently the position—all of which are empirical points that can be verified by further investigation—the argument becomes very weak.
I can go further. The structure of clause 38 illustrates well the fears that I am expressing. As I understand the provision, it will be open to the prosecution to move to remove the jury and replace it with a judge, not in cases of tampering but in cases where it is alleged that tampering may occur. The scope is therefore wide. I do not suggest that the prosecution service, the barristers that it employs or the police are ill disposed; they are all trying to do their job. However, their job is, properly, to convict speedily. In some cases, they may perceive that it would be easier to convince a judge than a jury, and there could be a temptation to allege that jury tampering might occur. It will be difficult to be sure that that does not become general practice. That is the slippery slope.
§ Mr. Robert Marshall-Andrews
Does the right hon. Gentleman agree that one of the main strengths of the jury system is that it is almost impossible to corrupt a jury? It has been proved time and again that 12 jurors are infinitely more powerful than one judge. If there is an allegation of jury tampering, and the judge hears it and receives evidence in secret under public interest immunity rules, he could not in any circumstances go on to try the case. Has the right hon. Gentleman considered that?
§ Mr. Letwin
We have been discussing that internally.
There will be much more debate in Committee, on Report and in another place, but today's early discussion has already revealed the considerable doubts that must be harboured about part 7. My hon. Friends and I will take a great deal of persuading about it.
936 Interventions from Conservative Members were not confined to my hon. Friend the Member for Buckingham, who might be regarded as a louche moderniser. [Interruption.] He is also an old friend. They included contributions from my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe).
§ Mr. Letwin
I was about to observe that my right hon. Friend is not typically regarded as being on the side of the criminal or uninterested in obtaining justice. She is not perceived as being unconcerned with victims and witnesses. Indeed, a large part of her political career has been devoted to precisely those causes. We do not need to be bullied into accepting provisions that may set dangerous precedents, by accusations that we are lily-livered or on the side of the criminal. We are not. However, in the memorable words of the hon. and learned Member for Medway at Prime Minister's questions today, it is not always necessary in pursuit of apprehending the wicked to sacrifice liberties that are of great value to the nation.
Let us consider double jeopardy. I accept that there is a genuine case for some change in the rules on double jeopardy in some circumstances. I know that some of my hon. Friends and some Labour Members do not accept that. My right hon. Friend the Member for Maidstone and The Weald, who has been a strong proponent of such changes in the past, made the salient point that the definitions of, for example, new evidence, are critical. However, as the hon. Member for Southwark, North and Bermondsey (Simon Hughes), who speaks for the Liberal Democrats, rightly pointed out that, beyond that there is a considerable and justified anxiety that, without great safeguards, the second trial may not start with the presumption of innocence. I accept that there is a certain unfairness in the logic here. It was partly, I suspect, because of pressure from myself and my hon. Friends—and, indeed, from the Liberal Democrats—that the Home Secretary carefully and rightly concocted the clauses in question to provide the safeguard that the Court of Appeal must judge that there is clear and compelling evidence, and that is welcome.
With a certain irony, however, that creates its own problem. If the Court of Appeal has judged that there is clear and compelling evidence, it is difficult to see how that, if it is known to a jury, ceases to be a reason for starting with a presumption of guilt. If I know that the Court of Appeal has ruled that a defendant has against him clear and compelling evidence, how can I start with the presumption that he is innocent? I will go further in my tribute to the Home Secretary and his colleagues, because they have also—again, perhaps as a result of conversations that we have had—taken care, rightly, to build in reporting restrictions.
That is welcome, and it helps to redress the problem. I am not convinced, however, that there are yet complete safeguards. Certainly, the amendment that my right hon. Friend the Member for Maidstone and The Weald suggested in relation to the character of the new evidence required would address the point made by the hon. and learned Member for Medway that we need to be sure that the changes would not induce sloppy policing in the hope of a second trial. I think that there is common ground between us on that subject.
937 Beyond that, we shall want to consider carefully in Committee how we can build sufficient safeguards in to the clauses to ensure that there is a presumption of innocence. We may part company at that point from the Liberal Democrats, who may object in principle to double jeopardy. I respect that position, but it is not ours. Ours is a balanced position on double jeopardy. We accept the basis for change, but only if the safeguards can be very robust.
§ Dr. Desmond Turner (Brighton, Kemptown)
Surely the effect on the presumption of innocence if new evidence is declared significant is no different from the presumption of innocence at the beginning of the first trial. The first trial would not have been brought unless the prosecution felt that it had compelling evidence, so I cannot really see the difference.
§ Mr. Letwin
Seeing the difference depends on the beholder as well as on the thing seen. Let me try to convey to the hon. Gentleman how this looks from my perspective. If I were a juror and I knew that a prosecution barrister, whose job it is to prosecute—guided by the CPS, whose job it is to prepare prosecutions—and the police, whose job it is to get prosecutions to succeed, were all alleging that the defendant was guilty, I would regard that as part of the ordinary course of business. That is, after all, those people's job. I would, I hope, start with the presumption that they were wrong, and try to ensure that they had proved to me beyond all reasonable doubt that they were right.
If, however, there were added to the mixture the observation that the second most senior set of judges in the kingdom had considered the case at great length, in the light of prolonged further investigations, and had already adjudicated that there was clear and compelling evidence, I think that it would be more difficult—although not absolutely impossible—to start with a presumption of innocence. To my mind, therefore, there is a difference between the first trial and the second. In this instance, the balance of doubt—the balance of advantage, so to speak—in the argument ought to lie with my perception rather than with that of the hon. Gentleman. If he is right, there will not be much to worry about if we follow the course that I recommend. If I am right, however, and we do as he recommends, we would have a real problem. The presumption of innocence is the single most important feature of our judicial system, and I want to protect it absolutely—even, if necessary, beyond the point at which it needs protection.
I shall now move on to the question of the character of the defendant. I should begin by saying that some weeks ago, I would have described this issue in terms of the release of information about previous convictions. If I were still able so to describe it, I would say that we had severe hesitations about the release of previous convictions to juries and that we wanted, in this case as in that of double jeopardy, explicit and much tougher safeguards to ensure that such convictions were released and continued to be released—of course, they are already released under certain circumstances—only where the presumption of innocence and the prosecution's duty to prove beyond reasonable doubt 938 were protected. In Committee or on Report or both, we shall table amendments specifically to introduce such additional safeguards.
However, I cannot describe that part of the Bill as dealing with the release of previous convictions because, to my astonishment—that is an accurate description—when we saw the Bill we discovered that it does not deal with the release of previous convictions alone. For example, if I understand it correctly, it deals with the release to juries of previous acquittals. I have to say that that fair takes the breath away. I cannot understand for the life of me how a jury can be expected to start with the presumption of innocence if it is open to the prosecution to bring forward a general character assassination based on innuendo and previous acquittal, tending, in the words of the Bill, to show a disposition on the part of the defendant towards criminality.
Alas, I think that I understand entirely the logic behind the proposals in that part of the Bill. Lord Falconer, who is one of the Home Secretary's close colleagues, will handle the Bill in the Lords. He is a distinguished jurist—one of Britain's most distinguished—and he comes from a long tradition of civil litigation. I believe that he starts with the idea that, in the words of Lord Justice Auld, with which I agree, justice is not a game. However, I believe that he also starts with the view that if justice is not a game it should, fundamentally, be a judgment on the balance of probabilities. That is an appropriate test when two people are arguing about how to allocate moneys between them, but it is wholly inappropriate to the question of depriving citizens of their liberties, perhaps for a long time.
I am devoted to the principle that we should eliminate from the list of factors that can be brought before a jury in any circumstances all those that have not been the subject of proof beyond reasonable doubt in a prior court. Having eliminated all other items, we would need additional safeguards that explicitly referred to the presumption of innocence and proof beyond reasonable doubt. Even then, if that position were achieved, I would, with a heavy heart, ask my hon. Friends to vote for such amended proposals. I would fear them even so, although I see the strength of the argument that at present there are inhibitions on trial judges that may need to be reduced to some degree.
I apologise to you, Madam Deputy Speaker, and to the House, for having gone on so long, but I want two minutes to add one more point.
§ Mr. Llwyd
The right hon. Gentleman knows, of course, that there is a right to introduce similar-fact evidence in certain circumstances, but is it not strange that the one category, or qualifying term, with regard to introducing bad character is thatwithout it, the court or jury would find it impossible or difficult properly to understand other evidence in the case"?I am sure that the right hon. Gentleman will forgive me for saying so, but I have prosecuted many cases, and one of the prosecutor's jobs is to explain the case to the court and the jury. Frankly, if prosecutors cannot do so without denigrating the defendant's character, they should jolly well give up the Bar.
§ Mr. Letwin
I agree with the hon. Gentleman—and beyond that, that phrasing reveals all too clearly the 939 very logic that I was exposing. It means that trying to persuade an old-fashioned jury beyond reasonable doubt, and against the presumption of innocence, that according to the facts presented, the person in question did what they are accused of, is beyond the wit of the prosecution, and therefore that explaining the prosecution's point to the jury's satisfaction is easier if it can make a pile of other assertions about the defendant. Well, I am sure that is true. If the hon. Gentleman were prosecuting me, he could say things about me—with perfect truth, alas—that would help him in his prosecution, but that would not prove that I had performed the deed of which I was accused. That is the essential difference.
As I was saying, I want to spend two minutes responding to and defending myself against accusations. On various occasions, in the House and outside, the Home Secretary has said he finds it annoying that the official Opposition often greet his proposals with some warmth—that has been the case with the generality of the Bill—and then, following the outcome, cause an awful lot of trouble for him and his colleagues in the House of Lords.
I have to say that I am not ashamed of that concatenation. I think it reasonable for us to back the generality of the Bill but to object to certain clauses. I also think it reasonable for us to try to forge an alliance with Members of the other House who are members of the Home Secretary's own party, and with Liberal Democrats and Cross Benchers in the other place—with, in many instances, Law Lords and bishops—and to limit the scope of Government action, especially in relation to matters that have very little effect on the control of crime.
The three things I have mentioned in particular today will not, between them, account for any significant number of trials, or for any significant number of criminals. They do, however, have vast potential significance in relation to the fabric of our liberties. If there is a proper role for this House and the other place in checking and limiting the Government of this country, it is to protect the fabric of liberties against the Executive. That is the solemn duty of Parliament, and I am unashamed of trying to use Parliament to fulfil it.
One of my colleagues in the shadow Cabinet who used to be involved, as a lawyer, in trials in Scotland told me that at the beginning of one trial the judge said, "Bring on the next criminal". That is the mindset to which we object.
§ Madam Deputy Speaker (Sylvia Heal)
Order. I remind Members that Mr. Speaker has imposed a 12-minute limit on Back-Bench speeches.
§ Mr. Chris Mullin (Sunderland, South)
May I draw Members' attention to my Select Committee's report on the Bill, which was published this morning and may help them? May I also lodge the usual protest that it is extremely difficult for a Select Committee to scrutinise a Bill published only 13 days before Second Reading, 940 without explanatory notes—which became available only on Friday last week, after our report had been finalised? Our witnesses had to give evidence without having seen the Bill. I will not labour the point, because it was made earlier by my hon. Friend the Member for Nottingham, North (Mr. Allen). Let me repeat, however, that the sooner all Bills are published in draft, as the Extradition Bill was, the better it will be for all concerned. I do not know what the Home Secretary has lined up for us to deal with in the next Session, but it would be nice to think that the finest minds in his Department were already working on it, so that we could avoid the same unseemly rush next time.
I believe that I speak for the entire Committee in saying that I am happy to support any measures designed to cut out unnecessary delay, and to make our notoriously insensitive judicial system more sensitive to the interests of victims and witnesses. We will also support any reasonable measures that help to make the judicial process a search for truth rather than a game of chance. I entirely agree with what the Home Secretary said about that.
The penny still has to drop for many of our learned friends. A policeman of my acquaintance told me last week that he recently heard a judge who was addressing an audience of 50 flatly reject the notion that the trial process constituted a search for truth. What we will not support, however, are measures that, however well intentioned, are likely to dilute the quality of justice. This Bill contains one or two such measures, one of which we have dealt with thanks to assurances from the Home Secretary about the disclosure of names and addresses of witnesses to the prosecution. The other measure—concerning previous character, which I shall come to in a moment—requires further discussion.
On part 1 of the Bill, we welcome measures such as street bail, which will reduce unnecessary police bureaucracy without impinging on the rights of the accused. We do not, however, believe that a convincing case has been made for extending to 36 hours the detention limit. In our view, there are alternative and more appropriate measures in the Bill, such as conditional bail, which will help to alleviate any problems with existing time constraints. On amendments to PACE, we strongly believe that any significant amendments should come into effect by affirmative order and not, as proposed in clause 7, simply by laying the amendment before Parliament. I should be grateful for the Minister's assurance on that point.
On parts 2 and 4, which deal with bail and charging, we support the proposal in clause 16 to impose a treatment condition on bail for class A drug abusers. However, it is obvious that that will work only if treatment is readily available, and we look forward to the Minister's proposals as to where and when treatment will be available. Perhaps we can discuss that matter in more detail tomorrow. We accept that a power to impose conditions on bail before charging is a necessary and logical part of the move towards charging by the Crown Prosecution Service, but we recommend a number of safeguards in addition to those in schedule 2—notably a time limit of four weeks, which the Association of Chief Police Officers proposed in its evidence to the Committee. I should be grateful if Ministers would consider this point.
941 On part 5, which deals with disclosure, we welcome the proposal for a single objective test. As I have said, I think that revisions to the Home Secretary's proposed code will deal with the problem of potential abuse where names and addresses of defence witnesses are disclosed to the prosecution.
On part 7, we welcome the Government's decision to retain the defendant's right to elect jury trial in so-called either-way cases. However, we accept that, in a limited category of cases—such as those where there is evidence of jury tampering—cogent reasons may exist for dispensing with jury trial. Nevertheless, as has already been pointed out, we should scrutinise carefully whether an allegation that a jury is about to be tampered with is being used as a device for escaping jury trial. Members of the Committee reluctantly accepted—we were by no means unanimous on this point—that this measure may also be necessary in complex fraud and financial trials, on the ground that length alone arguably undermines the principle of random selection of juries. We accept that in such cases, the rights of the defendant are adequately protected by the provision of a right to appeal against a decision not to grant a jury trial.
I should add, however, that I do not accept—as I have sometimes heard it suggested—that it is necessary to dispense with a jury because the issues are so complex that only a clever lawyer can understand them. It is up to the prosecution to present its case in such a way that ordinary mortals can understand the issues. [HON. MEMBERS: "Hear, hear."] I have also heard it argued that this may be the thin end of the wedge. I hope that no one in the Government takes that view—to judge by what the Home Secretary has said today, I doubt whether he does—because I do not, and nor does my Committee. Any attempt to go further will be met with stiff resistance.
On double jeopardy, the Committee welcomes the proposed reforms, which are in line with the conclusions of its report of two years ago. The Committee believes that the proposed safeguards—that only certain serious offences will be taken into account, that retrials will be subject to the approval of the Attorney-General and the Court of Appeal, and that new and compelling evidence must exist—are adequate to prevent abuse.
There was concern that the proposed increase in magistrates' sentencing powers might inflate the prison population unless it was implemented after the custody plus scheme was rolled out. I look forward to hearing from the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Leeds, Central (Hilary Benn), on that point.
We welcome the Government's proposal to preserve the presumption against hearsay evidence, subject to certain exceptions. I understand that the Government are proposing to adopt the Law Commission's suggestions on the reform of hearsay. I welcome that.
The biggest bone of contention is the proposal to admit previous similar convictions. The Committee was unanimously of the view that such convictions should not be disclosed automatically. We believe that that is a bridge too far. As the right hon. Member for West Dorset (Mr. Letwin) noted, the measure undermines a fundamental principle of our criminal justice system—the presumption of innocence. It opens up the prospect of previous convictions being used to prop up an 942 otherwise weak case. In our view, it will inevitably increase the temptation for police to round up the usual suspects. Far from helping to create a balance between the rights of defendants and accusers, the proposal would create an imbalance. For all those reasons, we believe that clauses 84 to 92 should be deleted from the Bill.
It may well be that safeguards can be brought in to meet our concerns on these matters. I shall only say that they will have to be pretty mighty, and that it is difficult for me to think what they could be. Speaking for myself, I shall vote for the Bill on Second Reading, but I shall not be minded to support it on Third Reading if it still contains that proposal. I should regret that, because I hope that I have made it clear that the Bill contains many useful and sensible measures. This proposal is not one of them, however.
The Committee has suggested some possible additions to the Bill that my right hon. Friend the Home Secretary might consider. They include anonymity for defendants in sexual offence cases, especially in those that involve historical abuse; the outlawing of unrecorded cell confessions; and the question of payments to witnesses.
I shall elaborate on the latter suggestion. As Ministers will know, a number of major criminal trials have collapsed because the media have made payments to witnesses, sometimes on condition that the trial results in conviction. The issue has been the subject of endless debate and consultation. The Government accepted the National Heritage Select Committee recommendation that self-regulation would not work and that legislation was the only possible solution. Five years later, the media are still drinking in that much frequented hostelry, the last chance saloon. We think that the Bill provides an ideal opportunity to legislate on this matter, although I appreciate that the business managers may have something say about that.
In conclusion, the question that arose over and over again in relation to many of the measures in the Bill was, "What is the problem they are intended to solve?" In many cases, the answer was that the resulting improvements would be modest in the overall scheme of things. I do not denigrate them: as I have just made clear, many represent progress and are perfectly sensible. However, as the right hon. Member for West Dorset noted a moment ago, if we are to restore the credibility of our system of justice, a cultural change by all the agencies concerned is required more than legislation. It is disorganised crime rather than organised crime that blights the lives of so many of our constituents. In most cases, the perpetrators never get anywhere near the courts because they are not apprehended and, in many cases, the courts are not the relevant agency.
First, we must end the culture of impunity. That requires effective and visible policing. I have always believed that 100 policemen on bicycles are more effective than two in a helicopter. For cases that do not reach court, we need efficient, speedy and fair justice that takes into account the legitimate rights of victims and witnesses and not just those of the defendant, important though those are, or the convenience of the lawyers. That is not so important.
943 Above all, we must end the culture of adjournment, which more than anything else makes our legal system a nightmare for victims and witnesses. It plays into the hands of unscrupulous defence lawyers and their clients.
In the end, those are management issues. They require not legislation, but effective management. I hope that the Government have now created for the police and the courts the legislative framework that will enable our system of justice to be managed in a way that commands the confidence of everyone who comes into contact with it.
§ Simon Hughes (Southwark, North and Bermondsey)
I pay tribute to the hon. Member for Sunderland, South (Mr. Mullin) and to the work that he and the Select Committee on Home Affairs do so promptly and efficiently to ensure that we regularly have the support and advice of his Committee before we deliberate on important Bills such as this. Let me pick just one matter from the many items that the Home Affairs Committee has recommended with which Liberal Democrat Members agree. The hon. Gentleman's last point has often been made to me about so much Home Office business—we need to deal with the administration, not the legislation. The Home Secretary understands this point and often makes it himself. If we could get the system working well, that might be more useful than seeking to amend the law which often does not make things work better.
I thank the Home Secretary for the way in which he responded to the concerns expressed about the run-up to today in terms of the information available. I look forward to having the missing pieces of the information jigsaw as soon as possible. He must understand that we are all grappling with a work load that is bigger than we might have chosen—none the less we need the tools to enable Parliament to do its job.
I understand exactly the point made by the hon. Member for Nottingham, North (Mr. Allen). I also take the view that we should have draft Bills and pre-legislative scrutiny. The only reason we did not put down a motion proposing that this should be committed to a Special Standing Committee was that we had the Halliday report, the Auld report, the White Paper and a period of consultation. I hope that the Home Secretary understands that that was an attempt to respond positively to a Bill that has had a longer gestation period than much legislation. However, legislation often changes quite a lot between concept and delivery. As the right hon. Member for West Dorset (Mr. Letwin) said, the Bill contains some provisions that were not in the plans a few weeks ago.
§ Mr. Allen
One of the advantages of pre-legislative scrutiny on the White Paper, which was eminently readable and well put together, would be to avoid having some of these provisions in draft legislation. 944 There would be less confrontation in this House or the other place because we would have been listening to people outside the House ahead of time.
§ Simon Hughes
Absolutely. Let me then make a point that I was going to make later. At lunchtime today, I had the privilege of being invited to Church House for the launch of a book called "The Future of Criminal Justice", published by the Society for the Promotion of Christian Knowledge. I know that the Under-Secretary of State was also invited. The book's editorial was written by Lord Hurd of Westwell. The book was written in tribute to Bob Hardy who, for 16 years until last year, was the bishop for the prisons. He was Bishop of Lincoln for much of that time. I went in part because he used to be my college chaplain—I thought that he was a good man then and he went on to be an even more important good man later.
Lord Hurd said in his introduction that one of the problems is that the penal system is a rather forlorn public service. The criminal justice system, until recently, has also been a rather forlorn public service in terms of the way in which we do our business. I accept the hon. Gentleman's point—that we need a less confrontational way of dealing with these reforms. I hope that the tone of the Liberal Democrats in this debate, in Committee and in the conversations that have taken place between the three major parties in recent weeks, has shown and will continue to show that although we may have strong differences and strong views, we will listen to the arguments, respond to them and amend our views if we are persuaded. That must be the way to make this very important Bill better and get it as near to being right as any legislation can be.
I have one last point that I hope will be accepted as a statement of desire for consensus. The Home Secretary has heard me say elsewhere that we want to try, with him, to get a settled criminal justice system, not one that is for ever open to legislative change. We will work with him and others in all parties to get a codification of the criminal law. There are big prizes if we can work together.
The Government have accepted that some of the mistakes that they made in their last Administration should not be made again. It is clear that the Home Secretary and the present Government have accepted the case that was made and won in the last Parliament: to get rid of the right to elect for trial by jury is a mistake and it should not have been proposed. After being defeated three times on the issue, the Government have understood that it should no longer be on the agenda. That is definite progress and we welcome it.
At the reception that I attended earlier, Lord Hurd said that the House of Commons often does not "do its stuff" in ensuring that Bills such as this are right. Other people who were there made points that were partly alluded to in the remarks of the right hon. Member for West Dorset. The biggest failures in the criminal justice system do not happen between the beginning and ending of the trial—they occur elsewhere. There is not enough crime prevention. People are not deterred enough from committing crimes. We do not catch people who commit crimes nearly enough. Punishments are not effective enough. We do not prevent reoffending enough. Those are the priorities, and I have heard no dissenting voices about that.
945 At the end of the last Session, when we debated the laws on immigration, nationality and asylum and the Home Office directorates that dealt with those matters, we pointed out that administration and organisation require the most attention from the Government. The same is true for this Bill. We may try to improve things by legislating, but our systems of trial and punishment will benefit much more from structural review. There will of course be resource implications.
Our consideration of the Bill gives us the opportunity to do two equally important things during the next few months. First, it will put the criminal justice system on trial—out in the open. There can be real debate about how to get it right. Secondly, it will put Parliament on trial, for the reasons set out by the right hon. Member for West Dorset and with which Liberal Democrats agree.
One test of whether Parliament does its job properly is whether we understand what the fundamentally important liberties of the subject are, and how to defend them. Unless we understand that, we shall not pass the test. All participants in the criminal justice system must believe that it is just for them, and that means just for defendants, too, even though they start by being the least popular group in the system.
Many people deserve praise for the way in which they participate in our criminal justice system: lay magistrates; people who work for the Court Service; judges and the Prison Service, from the director general downwards. By and large, they do an extremely good job. If there are mistakes and failings, it is often because people are not given the right direction or leadership.
As I pointed out to the Home Secretary earlier, however, it is not necessary to reduce the rights of defendants in order to increase rights and a sense of justice for victims, and some of us become somewhat aggrieved when that is suggested. In the sort of communities represented by the Home Secretary, the Under-Secretary and me, we need no lessons on the need to look after victims and witnesses. In many urban communities, we know the score extremely well. However, those communities have more than their fair share of defendants too. It is no accident that most people who end up as defendants are not rich and well heeled—although some are—but are those with the least education and the poorest start in life. That is not to say that my hon. Friends and I believe that people should not take responsibility for their actions whatever their circumstances. Adults should be accountable for what they do. They are answerable for their actions and they should be dealt with. But it is not without significance that the majority of inmates in nearly every prison or youth offender institute have lower than average academic qualifications, fewer skills, more mental illness and more disordered backgrounds. Many have been in care, have become prey to addiction or are socially inadequate and sad.
We all have a responsibility to understand that situation. The better answer is not to keep such people locked up for longer and longer. We have to ensure that they do not get into those circumstances in the first place. That is why, behind all we can do to get our trial and punishment systems right at the end of the day, sentencing reform—alternatives to prison—is the central, underlying issue for me. The alternatives need huge improvement and significant investment, and they 946 have often been the Cinderella service because prisons are not the most popular things to put in an election manifesto for reasons that we all understand.
There are two areas of common ground, and I will mention them in a sentence each. As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said, we need to get back to an understanding that the sequence of punishment starts with rebuke, warning and caution, goes on to fines, which have been grossly under-used and have become inefficient because no one collects them properly—a point made by the hon. Gentleman—then involves non-custodial alternatives, and only when all those have been absolutely exhausted should the custodial alternative be considered last.
May I also tell Ministers without qualification that the custody plus and custody minus proposals are extremely good? When people receive a sentence, some of which will be served in custody, they will in future understand that the sentence does not end when they come out of the prison doors, that what happens outside is as important as what happens inside and that the support, rehabilitation and retraining will continue afterwards too. If we can get that right, the ridiculous nonsense of people being literally thrown out of the prison gate and left to fend for themselves, with the consequence—we all know about it—that they often go back in again will, we hope, be considerably reduced.
The Home Secretary does not like this phrase, but there are three mixed messages and at least one wrong message. The Prime Minister has often said—he did so again today in answer to the hon. and learned Member for Medway (Mr. Marshall-Andrews)—that the criminal justice system does not adequately convict the guilty. I simply do not think that that is right; it is a gross exaggeration of what happens. The Prime Minister also sometimes says that the greatest miscarriage of justice is when the guilty go free, not when the innocent are convicted. I do not think that that is right either.
The price of a decent justice system is that, occasionally, the guilty will go free—the guilty will not be convicted—and it is wrong to think that trying to deal with that very small number of people is a price worth paying if, as a result, we end up with a criminal justice system that convicts more people unjustly or treats them unfairly.
I shall remind the House of the figures. I need not elaborate on them, but 95 per cent. of defendants in magistrates courts plead guilty, 74 per cent. of defendants in Crown courts plead guilty and 65 per cent. of defendants in contested trials at Crown courts are acquitted. The total shows that nothing like most people are acquitted; a huge proportion of them are convicted because those people admit their guilt or because they are found guilty after trial. So the failure is not that hordes of people are let out when they should have been convicted. That is not the central issue that we need to address today.
§ Mr. Dominic Grieve (Beaconsfield)
Does the hon. Gentleman agree that the Prime Minister's comments today introduce a slightly worrying feature to the debate? It is important that we have a rational debate, but for the Prime Minister to suggest—I also heard his words today—that those who are acquitted by juries are 947 guilty seems to run counter to the entirety of our legal principles and to start our serious debate on quite the wrong foot.
§ Simon Hughes
I absolutely agree with the hon. Gentleman. I was extremely troubled by what the Prime Minister said in answer to the question asked from the Labour Benches. The Government are becoming increasingly obsessed with putting up the conviction rate as though that were the right test and with trying to produce a system that makes that outcome more likely. The danger is that they will start to cut corners, to eat away at liberties and to undermine the criminal justice system, which used to have the best reputation in the world.
Other things concern me. I hear mixed messages from the Government about whether the number of people in prison ought to be increased or decreased. The Prime Minister seems to say that more people need to be put in prison; the Home Secretary seems to say that fewer people need to be imprisoned. We on the Liberal Democrat Benches believe that many people who are in prison do not need to be there and that we should not seek to go on increasing the numbers.
It would be helpful if the Government would make it clear whether it is their wish that prison numbers should start to go down and that the recent huge increase and huge overcrowding are trends that should not be replicated, with the danger of 100,000 people being locked up, increasingly two to a cell and with increasingly unsuccessful outcomes.
§ Miss Widdecombe
Of course there is a difference between deploring overcrowding, as I did today, and taking a view as to whether more or fewer people should be in prison. With overcrowding, the number of places is inadequate no matter how many people there are. I put it to the hon. Gentleman that the aim of the justice system is not to imprison more or fewer people; the aim must be to find places where courts determine that custody is appropriate to protect the public.
§ Simon Hughes
I agree with the right hon. Lady, but if she looks at the figures—she probably knows them as well as I do and will probably remember them specifically from her time as a Minister—she will see that, 10 years ago, one in 26 people who appeared before the courts went into custody. Now, one in 13 do so—exactly double the number. The same number of people appears before the courts and I cannot believe that is it necessary for double the number of people to be sent into custody now compared with 10 years ago. That happens because fines or alternatives to custody are not considered or thought to be inadequate.[Interruption.] The right hon. Lady says from a sedentary position that there is more crime, but I have to challenge her: there is not.
§ Simon Hughes
It may or may not have brought crime down, but the Liberal Democrats share the view of the Director General of the Prison Service that the length of 948 prison sentences imposed by the courts, especially magistrates courts, is drifting upwards, as is the frequency with which they impose prison sentences, and that more effective alternatives to custody should be available so that the best punishment and treatment is provided.
§ Miss Widdecombe
I am grateful to the hon. Gentleman for giving way a second time; it is extremely generous of him. What I said from a sedentary position—I did not dare test his generosity by standing up again—was not that there is more crime now, but that the system brought crime down. Does he accept that, in fact, a sharp increase in the prison population has coincided with the only sharp decrease in crime that we have had in 30 years?
§ Simon Hughes
The answer is that, as the right hon. Lady rightly suggests, there is one recent period when an increase in the prison population coincided with a fall in the crime figures, but whether the two things are directly linked is much more disputable. All that I know from those who do such things for their day jobs all the time is that, at the moment, the prison system has a high failure rate in terms of reoffending, particularly for young people, but for adults as well. We need a more successful punishment regime, with fewer people being imprisoned and more people receiving punishment in the community so that they can keep their jobs and stop their families breaking up. That must be a better alternative.
§ Mr. David Cameron (Witney)
I am grateful to the hon. Gentleman for giving way; he has been generous. Does he agree that community sentences will not work as an alternative to prison unless they are viewed as tough and rigorous by those who impose sentences—magistrates, mostly—and by victims? That is absolutely key if we are to keep the prison population down. What does he think about weekend prison, which seems expensive in terms of prison places? The key is to have community sentences—whether picking up litter or wiping away graffiti—that people can see are rigorous, tough and meaningful.
§ Simon Hughes
I have always taken the view that community sentences not only need to mean something, but to be seen to mean something. They must be seen to be worth imposing. They are getting much better. The Youth Justice Board and many other people have recently done a lot of work on them, but I entirely accept what the hon. Gentleman says. I agree that such sentences will often not be adequate, unless victims and others think that they represent real alternatives. As a postscript to that point, one of the things being explored in the hon. Gentleman's police authority area is the idea of victims and defendants confronting each other, so that the defendant understands the effect of his crime on the victim. The pilot schemes are not concluded, but it appears that it is much more likely that people will be persuaded not to repeat certain behaviour when they realise and accept the trauma that has been caused to the victim.
I am conscious that many other Members want and ought to be heard, so I shall be brief about my two other concerns about Government mixed messages, one of 949 which is about money. The explanatory notes include the bill for the Government's custody plus and custody minus schemes. We have also had an announcement of more money in the coming year for the probation service. It is quite a large bill. The costs of implementation, over the next five years, will be £34 million, £195 million, £301 million, £361 million, £378 million and £390 million. According to the projection, the costs will continue at £390 million per year thereafter. It would be very helpful if, at the end of the debate, the Minister could tell us whether it is true that if we pass the Bill the Government will be able to fund the custody plus and custody minus schemes. Alternatively, is it true, as some of his ministerial colleagues have suggested recently, that it will be 10 or 12 years before the money comes through the system to provide the kind of intelligent sentencing system that we all agree is necessary?
The last mixed message relates to clause 9 on drugs. It is unclear to send a message that cannabis is much less harmful than heroin, crack cocaine and the rest yet legislate to make an arrestable offence with an imprisonment consequence for possession, as well as other things, as clause 9 seeks to do. It would be far better if the dealing and commercial exploitation of drugs was seen as the iniquity that needed to be punished and dealing in cannabis for personal use was seen in a different league.
I must refer to the three giant issues of the Bill. Liberal Democrats stand up for lay justice. Like the Conservative spokesman, for us, lay magistrates and lay jury trials are the cornerstone of a criminal justice system in which the public have confidence. Because we are dealing with the fundamentals of liberty—whether people are arrested, detained, convicted and imprisoned—the best people to decide those matters with confidence are those who come from the community concerned, not the professionals. We cannot therefore accept the changes that are currently recommended.
On the change in the rules of evidence, it cannot be right, as the Chairman of the Home Affairs Committee said, that there is wider scope for evidence relating to a defendant's previous life to be brought into a trial when what they are being judged on is the specific offence with which they are charged. There is a huge risk that people will in future be judged not by whether they have done something on a particular day, but by how they have lived their life and whether they have done things wrong previously. Rehabilitation is not possible if people cannot escape from their past. It is too easy to pick up people who have been regular offenders. That changes the presumption of a fair trial and the presumption of innocence in a way that we cannot accept.
In relation to jury trials, the Minister knows—because we have had a conversation and debates about our objections—how successful serious fraud trials are. We have been reminded of that today. There are other ways of dealing with such cases. We can have assessors together with the judge, a smaller jury, a jury in which people are able to commit themselves for a long period, additional written material to help jurors, and an adviser to make sure that people understand the issues, but we need not get rid of the principle that, ultimately, the jury decides.
950 On the dangers in relation to the risk of intimidation, we understand the issue, but the threshold is too low. The serious risk applying to one defendant could suddenly mean that the jury trial disappears for all. We do not believe that that is right, and we hope that the Government will accept that that must be changed.
On double jeopardy, in answer to the question asked by the right hon. Member for West Dorset, we do not have an absolutist view. We do believe, however, that questions must be answered before we need to change the law. How will we ensure that, in future, any acquittal on a serious offence in the list will not, in effect, be a conditional acquittal? How will the press be prevented from determining the jury's view as it starts the second trial? We also express concern, as my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) said in his intervention on the Home Secretary, that the Law Commission recommendations in relation to the test and the charges—namely, murder—have been greatly widened by the Government. Again, we would require a much narrower range of opportunities for retrial. My honest judgment is that retrial only on the basis of scientific evidence that was not previously available might be agreed across the parties and would be likely to find more acceptance outside the House.
I have a long list of lesser first division points, although I can only deal with a couple. We share the concerns of the Home Affairs Committee that increased detention may not be the right answer, but more effective inquiry is needed in the time provided. We are worried that the criteria for the most serious violent and sex offenders—from whom we agree the public need greater protection—have been drawn too widely. For example, one of the offences in the list of those that would put someone in the indefinite sentence category is soliciting by men, which will be abolished in the sexual offences Bill that will be introduced in only a few months' time. It seems to us that the net is too wide. Ministers should seriously consider whether a decision later in a sentence on whether someone who has been convicted for a serious sex or violence offence is safe to be released should come back to court, so that a judge, having heard the case in public, can decide whether that person is fit to go back into the community. I do not accept the Home Secretary's view that there can never be redemption or rehabilitation, however terrible the crimes are. People may commit crimes that make them reviled as the scum of the earth, but even some of those individuals may later come good and be safe to be released. We must always allow for that eventuality.
In relation to the increase in magistrates' powers, the risk is that we have much more severe sentences, although we do not have objections in principle to more severe sentences for persistent offenders. In our view, however, there should never be mandatory sentences; otherwise, we will end up with a nonsense in which people are sentenced to a long term of imprisonment when their last offence may have been after a very long interval or may have been much less serious than those that they committed previously. That is why we are clear too that Ministers should not set tariffs. Parliament should set a maximum sentence, judges should set the actual sentence and, in dangerous and violent cases, the courts should decide when somebody should be released.
951 Since I have been my party's spokesman, I have tried to make it clear, along with my hon. Friends, that our party is not weak on crime or naïve about the causes of crime. Like everybody else, my focus group is my community. We are all formed by our experiences, and crime is at the top of many people's agenda. But neither will we be weak on justice nor on defending the rights and liberties of an ordinary person who happens to be a defendant, possibly for the first time in their life, and possibly only once in their life in a criminal trial.
Like the hon. and learned Member for Medway, although we tabled a reasoned amendment, it was not accepted, about which we make no criticism. We will therefore vote against the Second Reading of the Bill. That is not because we think that everything in the Bill is wrong—as I said to the Minister, we welcome many aspects of it—but because we believe that we need to register our opposition to some fundamentally wrong elements in it. We invite hon. Members on both sides of the House who feel able to do so to join us in that opposition. We will then work constructively, in this place and in the other place, because, when legislating for criminal justice, it is important that everybody thinks that justice has won, and that everybody feels that the system will treat them more justly in the future than it does at present.
§ 6.9 pm
§ Ross Cranston (Dudley, North)
I declare an interest. I am a member of one of the unpopular groups that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) mentioned. I am a lawyer in the House. The register also has the entry that I am a recorder. I have sat in the Crown court for 10 years.
I commend very much the measured and open-minded way in which my right hon. Friend the Home Secretary presented the Bill. That paves the way for its thorough consideration as it wends its way through both Houses.
On the Bilk background, I do not accept the view that some people have expressed, including police groups, that the Bill swings the pendulum back in favour of victims and witnesses. There is no symmetry between defendants on the one hand and victims and witnesses on the other. I also do not accept what is said at the other end of the spectrum. The Bill is not a frightening attack on civil liberties or a fundamental attack on ancient constitutional values. It is a collection of discrete and sensible reforms, based on detailed inquiries by John Halliday, Sir Robin Auld and the Law Commission. I commend John Halliday on his excellent report on sentencing. It was also right that my right hon. Friend the Prime Minister paid tribute this afternoon to Lord Justice Auld for his thoroughly researched and rewarding report. As my right hon. Friend said, Sir Robin Auld is a man of enormous experience.
I do not want to spend too much time on the non-controversial provisions in the Bill, but I very much welcome the sentencing provisions in it. A philosophy of sentencing is clearly set out and there are useful measures on the deferral of sentences and rehabilitative sentencing. They are very much to be welcomed. I also welcome provisions that will give the prosecution the 952 right to appeal when a judge stops a case halfway through. At present, there is a convoluted procedure whereby the Attorney-General has to refer the case to the Court of Appeal, but it cannot make a definitive ruling on it although there is a prospective effect given what the court might say about the judge's ruling. These changes are valuable.
I want to discuss the controversial measures that were addressed in the speeches made by the Front-Bench spokesmen. The first measure is the possibility that in complex and lengthy cases—fraud cases in particular—the jury will be dispensed with and the case will be tried by the judge alone. I accept the point made by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) that juries are competent to deal with such cases. If the charges are stripped down and presented properly to the jury, it can understand them.
However, I support the change for two reasons. First, it is not possible to find a representative jury for such long and complex cases. We cannot expect people in ordinary jobs to take three, four, six or eight months off work. Therefore, it is not possible to have a representative jury. Secondly and more important—this point has not yet come out—the way in which the cases are stripped down to be presented to juries does not demonstrate to them the true complexity of the case and the true criminality of the fraud involved.
§ Ross Cranston
May I seek your guidance, Mr. Deputy Speaker? Do I lose part of my time if I give way?
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
The hon. and learned Gentleman has obviously not been diligently reading Hansard or our rulings on the matter. I assure him that there is an additional minute for any intervention that he takes, up to and including the first two. I hope that that is helpful.
§ Ross Cranston
Thank you for that guidance, Mr. Deputy Speaker. I thought that, with modernisation, the rule might have changed. I give way to my hon. and learned Friend.
§ Mr. Marshall-Andrews
Can my hon. and learned Friend cite a single fraud case that bears out or backs up the proposition that he has just made?
§ Ross Cranston
My right hon. Friend the Home Secretary mentioned the Maxwell case, and abuse-of-process arguments apply to such cases. The prosecution brings first a stripped-down charge, the jury acquits after six months, the prosecution then comes along with the second charge and is told by the judge that that is an abuse of process. The trial then stops. The true complexity of the criminality is never revealed to the public if such an approach is used.
§ Mr. Grieve
Surely the abuse of process is related to the onerous burden that it placed upon defendants. 953 That was the nub of the burden; it had nothing to do with the jury or its status. A new jury might be produced. The problem was the burden placed on defendants in a series of prosecutions and, doubtless, may also have reflected the judge's view of the state that the prosecution had got itself into.
§ Ross Cranston
The hon. Gentleman makes my point for me. That is precisely what I am saying. The true complexity of the fraud was never put before a jury, because of the abuse-of-process arguments. The hon. Gentleman also misunderstood what my right hon. Friend the Prime Minister said this afternoon.
§ Ross Cranston
I cannot give way again. My hon. and learned Friend will have his say.
The shadow Home Secretary talked about slippery slopes in relation to this change. He suggested that it would somehow lead to elected judges. Frankly, I am still grappling with the gap in the logic there. I support the change as a sensible, limited and discrete measure to deal with complex fraud.
I also want to speak briefly about the issue of double jeopardy, which arose in the Stephen Lawrence inquiry. The gateways in the Bill are very narrowly drawn. First, the Court of Appeal has to sanction a second trial. Secondly, the Director of Public Prosecutions has to give his consent, and that must include a public interest test. Thirdly, there must be new and compelling evidence, such as DNA evidence or a post-acquittal admission. It must be highly probable that the person is guilty. Fourthly, there is the interests-of-justice test.
Concerns have been expressed about bad policing, but I invite my hon. Friends to look at clause 66(2)(c), where that issue is specifically addressed. It is not, therefore, a serious concern. There are problems about retrials and the prejudice that might be caused to the defendant if it becomes known that the Court of Appeal has held that it was highly probable that he was guilty. There are provisions in the Bill about how the media can be handled, and retrials already happen in some cases. I acknowledge the practical problem but that should be examined more clearly later in our considerations.
Evidence about bad character will, in the main, be about previous convictions. Previous convictions are already admissible. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) raised the issue of important explanatory evidence. If someone is prosecuted and has already been convicted of the offence of driving while disqualified, we have to adduce his previous conviction. I concede that the provision can be more broadly interpreted, and I shall deal with that point shortly. However, previous convictions can already be admitted. The House of Lords considered similar-fact evidence recently and extended the circumstances in which previous convictions can be admissible. Other examples include evidence of state of mind in handling cases and attacks on the prosecution. When a jury does not receive a good character direction, it knows implicitly that the defendant has previous convictions.
Clause 84 rationalises those provisions in many ways, but there are concerns. The Bar Council rightly asked whether the judicial filter should be stronger. Clause 954 84(3) imposes a judicial filter, but not in relation to all provisions in clause 84(1). I hope that my hon. Friend the Minister will consider whether judges should always consider the admissibility of previous convictions.
My hon. Friend the Member for Sunderland, South (Mr. Mullin) referred to bolstering a bad case. A stronger judicial filter would deal with his objection. Propensity is not proof, but we have to be realistic. The chairman of the Magistrates Association said in a speech yesterday that when she sat on the bench she often knew that a defendant had previous convictions because, in a small community, she had dealt with that person before. Typically in France, the first thing a judge does is to read out previous convictions. If properly applied and modified as I suggest, the provision could be useful.
I agree with what the Front-Bench spokesmen said about the administration of justice. That is one aspect of the necessary changes. The courts Bill will address some of the other problems with the administration of justice, but this Bill is sensible and modest and will improve confidence in the criminal justice system.
§ Miss Ann Widdecombe (Maidstone and The Weald)
I want to address not only what is in the Bill, but what is not in it because there are one or two important omissions.
The Bill makes no attempt to introduce an offence of substantial possession in drugs cases. The arrestability for possession of drugs has been mentioned. My principal concern is that following the Home Secretary's decision to reclassify cannabis—I shall leave my strong disapproval of that to one side for a moment—someone who carries a substantial quantity of it can argue that it is for personal use only and is, for example, a year's supply. Indeed, such a defence was mounted by someone accused of dealing in ecstasy. He said that he happened to be carrying 52 tablets because it amounted to one a week for a year.
I have long argued that there should be an offence of substantial possession. I would welcome the Government's response to that because the Home Secretary has said that he would take the matter seriously. Such an offence would mean that although intent to supply cannot be absolutely proved, the quantity possessed is sufficiently great for it not to be treated as a case of simple possession. It would he helpful to address the idea of substantial possession. The argument that a drug is for personal consumption over a long time is a standard defence to charges of intent to supply.
The Chairman of the Select Committee briefly touched on the other measure that is missing. He suggested that the Home Secretary might like to consider anonymity for defendants in rape cases. It is wholly wrong and completely unbalanced against the accused that his identity is known throughout when the accuser's identity is not. To justify that, it is often argued that if a defendant has committed similar unreported crimes, the disclosure of his identity encourages people to come forward. But of course, the converse argument applies. If the accuser has made false allegations before—perhaps not even at a legal point, but in an employment context—no similar means are open to the 955 defendant, which would encourage people to come forward and say that that has happened before. It is loading the dice against the accused, who is nearly always a man, of course. I wish that the men in this place would occasionally wake up and realise that the dice is being more and more heavily loaded against them.
There have been two references to the injustice perpetrated when people serve enormous lengths in prison and are proved at the end to be innocent, although I accept that the Bill might not be the right vehicle to tackle that. The Stephen Downing case was mentioned. There was another case, the name of which eludes me—
§ Miss Widdecombe
Indeed. That case came to light only recently.
I am sure that the Minister will understand that if people who have been convicted persist in denying their guilt, they are deemed not to have addressed their offending behaviour and therefore not to have satisfied a necessary criterion for release. That means that the small handful of people who have been wrongly convicted and who face substantial sentences have no hope while they persist in their innocence. Although I accept that there is no quick and easy solution, because we do require people to address their offending behaviour, that rule needs to be reconsidered because we have had not one but two cases in which people have served huge sentences, and in Stephen Downing's case it was 27 years.
The Bill contains a measure to release criminal records to juries before a verdict. That is an extremely unwelcome development. The circumstances in which it can happen at the moment are limited and are especially relevant when a co-defendant might be prejudiced if the information is not available. However, the proposed widening of that rule will have extremely dangerous implications. Juries on the whole are diligent. Like many other hon. Members, I have sat on a jury. I was involved in a series of trials in the Crown court and remember that we were told not once, but twice to disregard things because they should never have been said. We may have been saintly and tried as hard as possible to ignore those comments, but we had heard them.
In one case, a damaging piece of information was slipped in by a clever lawyer. We found out that although the man before us was pleading not guilty, a co-defendant had pleaded guilty. It was not the sort of crime in which one could be guilty and the other could be not guilty. They had either both done it or neither had done it. The judge told us to disregard the comment, but we knew. In our deliberations thereafter, no matter how hard we tried to carry out an academic exercise in weighing up an argument without that information, it came up time and time again. Only a jury of saints and angels could say, "But they still have to prove that he committed this particular crime", and not allow a long list of previous convictions to give weight to their decision.
It is a central tenet of our justice system that someone must be proved guilty beyond all reasonable doubt. When a person sits in the dock, he is innocent of the 956 crime that is attributed to him until it has been proved beyond all reasonable doubt, irrespective of his previous record. If a person has done nine burglaries in the past three years, it does not follow that he is guilty of the 10th. I see the Minister writing and I know what is about to come. If a person has committed acts of domestic violence it does not follow that they have committed the act of which they stand accused.
Suppose, for example, that a man had committed two assaults on his wife, and on the second occasion the judge said to him, "This is a very serious matter and if you come before the law again you will face a custodial sentence." It is possible that if relations with his wife continued to deteriorate, quite understandably in the circumstances, she might be tempted to say, "I am going to get rid of you for some time. I shall say that you hit me." The jury could then be told that the man was in the habit of assaulting his wife. I submit that it is impossible to maintain the view that somebody is innocent if we load the dice against them by laying open their past offences.
§ Miss Widdecombe
I will, but I want first to respond to a specific point made by the hon. and learned Member for Dudley, North (Ross Cranston) which is relevant to what I just said. He said that already, in juries' minds, if good character is not adduced there is an awareness that something is amiss and that the person must have erred before. That is true, but they do not know what that person has done. If a person has a 20-year-old conviction, which under the Rehabilitation of Offenders Act 1974 is long since spent, they cannot be said in court to have a good character. The jury has no clue as to the seriousness of the offences indicated by the omission of good character. This provision is not at all the same—juries will be given that information.
§ Miss Widdecombe
Yes, but first I must give way to the hon. Member for Stafford (Mr. Kidney), as I promised.
§ Mr. Kidney
I was struck by the right hon. Lady's example of the jury who, according to the rules, should not have known that the co-accused was pleading guilty to the offence, a fact that was very material to their considerations, as she told us. In view of that, is she satisfied that the existing rules are perfectly adequate?
§ Ross Cranston
The point is that I said that the jury might know that a defendant had previous convictions, but they might not have appreciated that fact. However, is not the right hon. Lady's point an argument to the contrary, in that it may help the jury to know the specific offences committed by a defendant rather than simply to be left in the dark about how serious or trivial those previous convictions may be?
§ Miss Widdecombe
No, I do not agree. The burden must be on the prosecution to prove beyond all 957 reasonable doubt that a particular crime, not a type of crime, was committed by a particular person. That must be the touchstone in determining whether a person is innocent or guilty.
I do not think that one can reasonably put before a jury a long record of similar offences and not expect that to be taken strongly into account, even if it affects only the jury's attitude, because of course juries do not make decisions simply by weighing facts; they are directed to consider the bearing of a person and which version of events they prefer. A certain amount of gut instinct applies in jury deliberations, as I am sure the hon. and learned Gentleman is aware. Once a material fact about previous convictions has been thrown into the cauldron, it is difficult for the jury to lay that to one side and simply consider whether or not the defendant committed the crime in question.
I also submit, in the short time available to me, that this provision is an invitation to sloppy policing. It will allow the police to think that a defendant has a record as long as their arm, so a jury will not be sympathetic and they are more than likely to convict because they will not think that they are doing much damage—the accused is a criminal anyway and is likely to commit another crime at some point.
It must be central to our justice system that one comes to court as an innocent person, no matter what one's past record, and a case is made meticulously, beyond all reasonable doubt and not on the balance of probabilities, that one committed a particular crime. If that principle is not adhered to, we will be giving up a major and important civil liberty.
§ Mr. Brian Sedgemore (Hackney, South and Shoreditch)
I must confess that until today I had not considered the right hon. Member for Maidstone and The Weald (Miss Widdecombe) one of life's civil libertarians, but it just goes to show that there is hope of redemption for us all because I enjoyed the whole of her speech. It will not do her any good, but there we are.
The Home Secretary was so emollient that there were times when I wanted to scream. Who put the real Home Secretary into a box, gift wrapped it and labelled it, "Merry Christmas to you all"? What happened to the Rottweiler that eats lawyers for breakfast, lunch, tea and dinner?
I went through the Bill carefully and searched its every clause and subsection for a guiding principle, but I could find none. I then dug deep for any enduring values that might have enthused its progenitors, but there were none. Maybe, I thought to myself, this Bill has been inspired by noble ideas, ancient and modern. Alas, I was disappointed again.
Eventually, the secret behind the Bill emerged in the newspapers. The Bill, so the spin-meisters told journalists, is designed to refocus the criminal justice system in the interest of victims. As Labour Members have said, that is nonsense. The Home Secretary is also reported to have said that the Bill will push up the conviction rate, and that is even worse nonsense. If, indeed, he really wanted to introduce legislation significantly to push up the conviction rate, and I am not advocating this, he would need to abolish our 958 adversarial system of justice and, with it, the presumption of innocence. Let us all pray that he does not read this speech tomorrow.
My complaint about the Home Secretary's approach, and it is a serious one, is that where there is a clash, as there often is in these cases, between utilitarianism and individual rights, the Home Secretary always comes down in favour of utilitarianism. I shall develop that argument in a moment. Throughout the Bill, he wages war on liberty in certain important respects with the determination of the zealot and the understanding of one who has forsaken the scales of justice for the dead weight of popular prejudice.
Let us take, for example, trial by jury. Everyone knows that removing the right to trial by jury, whether in the old plans, the new plans or the plans that will be introduced in the next Session, will lead to more innocent people being convicted, but no one has yet been able to explain to me how convicting the innocent helps the victim. On the contrary, it shows a contempt for victims that beggars belief. It is a cruel deception on victims born of political psycho-babble, of which we get all too much from the Home Office, as we can see from its list of Bills since 1997.
My hon. Friend the Member for Wirral, West (Stephen Hesford) asked the shadow Home Secretary whether there is a point of principle about jury trials. There is indeed a point of principle about jury trials, which is explained concisely and lucidly by Lord Scott of Foscote in his judgment in Grobbelaar v. News Group Newspapers Ltd. and Another—the case of the cheating goalie—when he said:Judges have not always in the history of our justice system been seen to be independent of the executive. The independence from the executive of prosecuting authorities has not always been apparent and still today is regarded with some cynicism by some people. So it is not surprising that the role of juries in the criminal justice system is widely regarded as constituting a key and necessary protection for the citizens of this country from unfair and oppressive prosecution.One cannot get a much better principle than that: protecting the citizen from unfair and oppressive prosecution.
As has been said, the argument about the limited number of cases is not good in logic, and I have a nagging doubt that once we open the door, we may see other such Bills. Of course, we know in this case about the Home Secretary's previous bad character and previous convictions. He is, after all, the person who came before the House barely a year ago and told us that we need not worry because he was going to abolish jury trials only for lesser offences. Now he comes here and tells us that we do not have to worry because he will abolish jury trials only for a few very serious offences. I dare say that following next year's Queen's Speech he will say, "All I have in mind is the abolition of jury trials for middle-ranking offences." The Home Secretary, I suspect, may agree with Lord Thomas Denham, a man of no consequence and little intellect, who said in his judgment on O'Connell v. the Queen 150 years ago:Trial by jury itself … will be a delusion, a mockery and a snare.Lord Denham, an authoritarian by nature, was concerned, as the Home Secretary may sometimes be, about the fact that juries have independent minds that cannot be controlled by the Executive or judicial elites—thank God for that, say most of us.
959 According to the philosophy of an acerbic 18th century writer of letters, whose identity was hidden behind the soubriquet "Junius":The injustice done to an individual is sometimes of service to the public.Some say that Junius was Edmund Burke, others that he was Lord Shelburne, but I believe that he was our current Home Secretary in an earlier incarnation. Some of the Bill's provisions, including those on admitting prejudicial hearsay evidence and accounts of bad character, including the defendant's previous acquittals, come into Junius's category of causing injustice to individuals in the interests of some unstated higher good. We should challenge the Home Secretary on what higher good he is seeking to achieve in the Bill.
Sadly, the Home Secretary's predilection for the philosophy of Junius was evident in the Anti-Terrorism, Crime And Security Act 2001, in which he paved the way for locking up foreigners indefinitely without charge, trial or sentence. Once a Home Secretary starts to erode civil liberties, it becomes easier to repeat the process and more difficult for people like me to shame him as the perpetrator. If the prosecution is unable to prove its case in a criminal trial, either because it does not have one or because it has been slipshod in marshalling the evidence, there is no better and more unjust way to enable it to secure a conviction than by allowing both a list of the defendant's previous convictions and an account of his bad character, which could deface the principles of fair trial in England and Wales. How the slaughter of innocents in those cases will refocus the criminal justice system in favour of victims is something that my enfeebled mind cannot comprehend. No doubt, the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Leeds, Central (Hilary Benn), will explain it in his winding-up speech.
I believe that civilisation depends on the holy trinity of justice, freedom and liberty. People who, like the Home Secretary, seek to separate justice from freedom and liberty soon find themselves, albeit inadvertently, going down the road of barbarism. I do not know of any Labour Back Bencher who wants to go down that road yet, in a bizarre refutation of conscience and belief, we shall tonight shut out the warning of the director of Liberty, who only accentuated the obvious when he said:In years to come as more innocent people emerge after years in prison caused by these plans, we'll wonder how Parliament let this attack on justice get into law.Only a few days ago, on 24 November 2002, John Rawls—one of the foremost political philosophers of our era—died. His message to the Home Secretary would have been that the loss of freedom for some can never be made right by a greater good shared by others. In affirming the priority of the right over the good, he would tell the Home Secretary that major aspects of the Bill are morally, politically and philosophically flawed, as they are based on the priority of utilitarianism over individual rights. I would simply warn the Home Secretary that if he is unwilling to maintain justice, justice may well be unwilling to maintain him.
§ Mr. Peter Lilley (Hitchin and Harpenden)
It is a great pleasure to follow the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore), who followed me when I made my maiden speech and graciously honoured the conventions of the House by congratulating me. Without any need to apply convention, I congratulate him on his speech—I agree with it very much.
My constituents want serious and substantive measures to punish the guilty and protect the innocent, and will be as puzzled as contributors to our debate by the insubstantial nature of the Bill's provisions on tackling crime. Those provisions appear to be the fruit of an unholy and cynical alliance between tabloid populism—which is designed to sound tough on crime but has no substantial effect on it at all—and modernising zeal, which, in practice, will undermine the liberties that have protected the innocent in this country for centuries.
The Gracious Speech referred to safeguardingthe interests of victims, witnesses and communities.It may be significant that no mention is made of safeguarding the innocent. Indeed, I believe that the Home Secretary recently equated wrongful conviction of the innocent with a failure to convict the guilty. My constituents do not make that equation—they recognise that the risk of convicting innocent people is not merely abhorrent but will result in the guilty remaining at large, free to go on committing crime. Ministers foster the belief that few crimes result in convictions because the courts fail to convict—that is why they want to change the court process. In fact, as we have heard, more than 95 per cent. of cases in magistrates courts result in conviction and more than 87 per cent. of cases in Crown courts result in conviction.
The Government want to increase those conviction rates even further, but make no mention of the fact that more than an average of more than 4,000 convictions every year for the past 10 years have been quashed. Innocent people have been found to be wrongly convicted. The Government are not anxious to change that in future—they are not worried that 4,000 guilty people may be at large because 4,000 or more innocent people have been wrongly convicted. In practice, the measures introduced by the Government will undermine the protection of the innocent, which is an important principle.
I do not necessarily oppose change to things such as jury trial or centuries-old rules on double jeopardy, but anything that has existed for a long period and has served us well should be changed only if the change can be shown to be necessary to produce a substantial improvement; if it has been well researched; and if it is clearly well motivated. A number of Government measures, I am afraid, do not pass any of those tests. As the hon. Member for Hackney, South and Shoreditch said, the Government cannot complain if we refer to their previous convictions. On the matter of jury trial, they have two serious previous convictions and have attempted to remove people's right to choose jury trial in either-way cases.
In the light of that attempt to restrict jury trial, we must evaluate the four measures that the Government wish to introduce, all of which would undermine the use 961 of jury trial by stealth. First, they want to increase the sentencing powers of magistrates courts from six months to 12 months, although that is accompanied by a welcome quid pro quo that magistrates will no longer be able to refer to higher courts for sentencing. The net effect, however, is to reduce the number of jury trials, the Government anticipate, by 6,000 a year.
The remaining three measures are designed to reduce the use of jury trial in the most serious cases of indictment. The Government propose that defendants be given the option to choose not to be tried by jury. Frankly, it is bizarre of a Government who have previously justified their attempt to abolish the right to choose trial by jury instead of in a magistrates court, with the principle that it is wrong for defendants to have the right to choose jury trial, now to say that as a matter of principle they will introduce choice so that people can choose not to have jury trial in the most serious cases.
The only unifying feature in both instances is, as I pointed out to the Home Secretary—although he did not take the point—that the Government want to move in a direction that will result in fewer jury trials. It is odd that the previous Home Secretary described our system of allowing a measure of choice in either-way cases as wrong in principle, "frankly eccentric" and almost unique in the world. It is now said that he was misleading the House. Far from the system being frankly eccentric and almost unique, we are told that it is almost universal in other common law jurisdictions for there to be an element of choice. It is proposed to introduce that element of choice in trials by indictment.
Should we accept the conversion to choice, welcome it and say that if it works overseas we will accept it? That would be unwise. The conversion is being introduced by those who want to reduce the use of jury trial. There is the danger that once it is introduced, the same arguments that were applied to the right to elect for jury trial rather than the case appearing before a magistrates court will be used in cases where people continue to opt for jury trial rather than trial by the judge. It will be said, "They are merely using it to manipulate the system. There should be trial by judge. That would be more economic, for example."
All the other jurisdictions have entrenched the right to jury trial in their constitutions. They are safe from a slippery slope. According to their constitutions, there cannot be the complete erosion of jury trial. We do not have that protection. Instead, the House is that protection. The House should not start down the slippery slope.
Another measure that the Government propose to reduce the number of jury trials is to give prosecutors the option, if they consider that a case would be too complex a burden on a jury, to ask for a trial without a jury. It seems odd that prosecutors should be made the defenders of jurors' rights and convenience. However, that is the proposal. It gives the prosecutor an incentive to make a case long and complex and the documentation excessive if he or she wants to do without a jury trial and thinks that a judge is more likely to arrive at a favourable judgment.
That is bad because we should be trying to speed and simplify such trials. On page 17 of "Taking Liberties", which is available on my website, a senior judge states:Brevity and simplicity are the handmaidens of justice, and length and complexity are its enemies".962 We should not give prosecutors an incentive to make their cases long and complex, especially as in the past four years the Serious Fraud Office has achieved a 92 per cent. success rate in obtaining convictions as against a 57 per cent. success rate in contested trials before jurors generally.
The final measure that the Government are proposing to erode the use of jury trial is to give the court the option, again on the application of the prosecution, to forgo a jury trial if there is a risk of jury tampering. As far as I can establish, the proposal was not even put forward by Lord Justice Auld. He put forward the most comprehensive proposals for reducing jury trial ever previously known short of abolishing juries, but he had not thought of the measure that the Government are putting forward. Presumably, that is because he had not found any evidence that it was needed. Nor have the Government put forward any evidence of the need for it.
It means that effectively judges will say, "These are the sort of people who might tamper with juries. Therefore, I will not give them the protection of a jury; I will judge them myself." That is not likely to encourage respect for the law. Would it not be better to say that if there is such a risk, let us consider the option of giving juries anonymity rather than doing without juries?
The Government's measures are all moving in one direction, which is the decline in the use of juries. They are mistaken in wanting to move in that direction because juries are not only the best method of trying cases but the only method that we have as citizens, apart from our vote, in participating in government and our system of justice. About 187,000 people a year participate in juries. That is a good thing and something to be encouraged and increased, not diminished. When Tocqueville was analysing democracy in America and Anglo Saxon countries and saying why it was so important, he said:The jury is above all a political institution. The jury plays an incredibly important part in forming popular judgment and improving people's natural understanding of the law.I believe that we reduce its role at our peril.
I move on to double jeopardy. The two arguments in favour of diminishing the use of the rule are that the evidence of DNA could be available and the evidence of confessions post-conviction could be used. It is important to understand that neither case will apply to any offences committed in future. Only retrospective offences will apply. In any offence committed in future, DNA will be available at the first trial. If it is not brought up then, it will not be a justification for a second trial.
Confessions after conviction will no longer occur if we do not have the double jeopardy rule. We are talking about changing a rule to bring about convictions for offences that have already occurred and not increasing in any way the likelihood of—
§ Mr. Robert Marshall-Andrews (Medway)
It is a pleasure to be able to welcome some limited parts of the Bill. I do not want to pick them out individually, but there is the abolition of magistrates courts' right to commit for sentence. That is long overdue and ends the 963 iniquity of one court deciding on guilt and allowing another court to pass sentence. There are some parts of the Bill that are good and some that are bad, but in truth not that bad. In that I include the rules for the admission of previous convictions. It is with great trepidation that I disagree with my good and hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore). If we make allowance for the deplorable drafting of clauses 84 to 92, it appears that what is postulated in the Bill is not very different from the rules that we already apply in criminal courts.
In a criminal case, it is often an enormous release to put our form in. The way in which we run a defence is often so gravely inhibited by not being able to do so that it can be a significant and positive disadvantage. To say to a jury, "Yes, I've done it four times before, but I didn't do this one. I'm only here because I've done it four times before and the Old Bill picked me up," is not a bad defence, especially if there is not much else to say.
There are parts of the Bill, however, that are not just bad, but are conspicuously and dreadfully bad. The provisions that are an assault on jury trial represent the most serious infringement of fundamental liberty that has come before Parliament in recent history. They are substantially greater than the mode of trial provisions, and I shall echo what my hon.—and learned—Friend the Member for Hackney, South and Shoreditch said. There is a savage irony. When we were fighting mode of trial Bills 1 and 2 to the death, we were told repeatedly by the Home Secretary that our opposition was ill founded because they would apply only to the less serious offences in the criminal calendar. Now that the Government have been beaten to a standstill twice, they are attacking the beast from the other end. We are told that only the most serious offences in the criminal calendar will be decided by the judge. In making such provisions, I fear that the Government show a savage ignorance of the centrality and essential nature of the jury in our adversarial system. The provisions will undoubtedly bring judges into serious disrepute. In their current form they are impossible to apply in the trial process, and they will result in many cases being successfully brought in Europe. Apart from that, they are fine.
§ Lady Hermon (North Down)
For many years, non-jury trials have taken place in the Diplock courts for serious terrorist offences. I hope that the hon. and learned Gentleman is not implying that judges have been brought into serious disrepute in Northern Ireland because of those trials?
§ Mr. Marshall-Andrews
No, I am not. I acknowledge immediately the special circumstances that apply in Northern Ireland. The hon. Lady will forgive me if I do not get into an argument about Diplock courts, which are a different matter.
The centrality of the jury in our system cannot be overstated. It was said recently that jury trial does not go back to Magna Carta—it has formed part of our criminal justice system since well before then. It has been suggested that it dates back to 1855. That is false and misleading. On the contrary, in 1855, people were allowed to opt for summary trial, not jury trial, and 964 either-way offences were created. Jury trial, which was the only mode of trial for centuries, did not always result in acquittal. It has not been a soft option. My hon. Friend the Member for Hackney, South and Shoreditch—to whom I shall not refer again—will know, because he is named after the famous battle, that the bloody assizes in the west country were conducted by means of jury trials. Doubtless the Home Secretary would thoroughly approve of those assizes.
The great benefit of jury trial is not simply that it is fair and perceived to be fair, and that it involves the citizen in the process of justice, but that it is profoundly modern. It is one of our most ancient rights and liberties, but also the most modern. How many institutions do we seek to modernise by bringing in the ordinary citizen to participate in running them? It is our permanent aim to bring the citizen in to health, education—and, indeed, politics. Yet that has happened in the law for nearly 8,000 years. Jury trial is therefore our most modern institution. The citizen is empowered, and thereby ennobled.
Our adversarial system means that the jury is vital. We are an adversarial people. Like the court, the Chamber is an adversarial arena. That is the way we do business. The Government decree, and they are opposed—not necessarily from the Conservative Benches. Governments should be opposed. We do business in our courts in the same way. We do not have an inquisitorial system. I suspect that the judge to whom my hon. Friend the Member for Sunderland, South (Mr. Mullin) referred was really saying that we do seek the truth in our criminal justice system. In our adversarial system, the state brings its case, which it must prove. If it does not prove the case, that is the end of the matter.
How can the state bring its case in front of someone who is its agent and employee? The principle of our jury system is that the state brings its case, but must prove it in front of the citizen. To suggest that one can create an inquisitorial system by simply ripping out jury trial is the precise equivalent of claiming that one can remove the wheels from a car and thereby create a boat. The checks and balances that are implicit in an inquisitorial system are absent from the system that we operate. Judges cannot sit as judges of fact as well as of admissibility, fairness and law.
The change is unnecessary. None of us who has laboured in jury trials in serious fraud cases has the slightest doubt that juries understand perfectly well the issues involved in serious fraud. That is almost always because the question of whether serious fraud has been committed is not an issue, and the case is a therefore a whodunnit. Juries cannot be surpassed for defining who done it.
Jury tampering and nobbling are rare in our system, because it is almost impossible to corrupt an entire jury. That is the strength of the system, and the reason for having 12 people. Corrupting, bullying, bribing or intimidating 12 people is almost impossible. We have an incorruptible judiciary and we are unique in the world in being able to say that. We have the worst system in the world—except for all the others.
One of the reasons for the incorruptibility of our judges is the jury system. There is no point in attempting to bribe, bully, cajole or intimidate judges, because they 965 have nothing to do with the findings of fact at the end of a trial. However, if we allow judges to sit alone, they will become the subject of bribery, bullying and intimidation. Of course, 99.9 per cent. will resist, but if one goes, the whole system that we value in this country above any other institution will be at risk. There will be strong judges, who get a reputation for permanently favouring the Crown, and weak judges, against whom the accusation will be levelled that they are buyable and bent. Before we know where we are, our whole criminal justice system will be brought into disrepute and disarray. Hon. Members must defend our system.
Of course the changes will not work. Nothing has been thought through. What happens if a judge is told that a jury has been tampered with and the prosecution places an application before him? It will be heard in secret because of the public interest immunity rules. If the judge, after hearing the application in secret, decides that there is a risk of tampering by one defendant out of, for example, 10, will all 10 lose the right to jury trial? Will we have two trials under two different systems for the same offence? The judge cannot try the case. If he does, the trial will be rendered a nullity by Europe, because the judge and the prosecution are privy to information that is not available to the defence. That applies to every application for PII in any trial.
I have reached the end of my time, and I have not yet mentioned double jeopardy. We lawyers have an odd vested interest if we are against the change to the double jeopardy rule, which will double the number of trials available for us. However, we are against it for the same reasons of liberty that I have outlined. Let me end by saying that one cannot reduce human wickedness by reducing human liberty. That has never been done in history. Totalitarian states, where liberty is completely curtailed, may reduce crime, but they do so by the immediate equation of transferring wickedness from the individual to the state.
§ 7.8 pm
§ Lady Hermon (North Down)
I must confess that I have lost track of the number of criminal justice measures that have come before the House in the past 10 years. I would dread being a law student who had to sit through a criminal law lecture and try to keep up to speed with what has happened. I should also hate to be a practitioner or member of a police service who was trying to keep abreast of all the criminal justice legislation.
Will the Under-Secretary confirm in his winding-up speech that that useful hard-working institution, the Law Commission for England and Wales, which has existed since 1965, has consolidation of criminal justice legislation near the top of its agenda? That would hugely benefit all of us, especially practitioners who have to apply such legislation. The Law Commission's website states:The Government has said that it sees the enactment of a Code as an important part of its plans to modernise the criminal justice system.I would therefore welcome the Under-Secretary's confirmation that codification of the criminal justice system is a top priority.
It intrigues me that criminal justice is not a devolved issue in Northern Ireland. Our Assembly is suspended at present, but criminal justice is still not a devolved issue, 966 and has not been for a considerable time. It has remained here at Westminster. Will the Minister explain why the Bill does not extend to Northern Ireland—and, indeed, why the Hunting Bill that we discussed yesterday does not do so? I should perhaps put it on record that I am probably not speaking for all my colleagues when I ask for the Hunting Bill to be extended to Northern Ireland.
I am exceedingly concerned about the cost of implementing the Criminal Justice Bill. In an interview in The Times yesterday, Lord Falconer was asked what the financial costs of the Bill would be. He replied:On current assumptions it will require £1.6 billion over six years.Fighting crime involves putting police officers on the streets of our villages, towns and cities. If even a fraction of £1.6 billion were directed towards recruiting more police officers, it would help in the fight against crime. Tinkering with our criminal justice legislation will not.
When I say "tinkering", I am referring specifically to two aspects of the Bill that worry me considerably. The first involves double jeopardy. The Minister will be aware that schedule 4 lists 30 very serious offences which, it is proposed, should become exceptions to the double jeopardy rule. At the same time, we are considering the Extradition Bill, which is also the responsibility of the Home Secretary. I am sure that the Minister will be familiar with clause 12 of that Bill, which is headed, "Rule against double jeopardy". It states:A person's extradition to a category 1 territory"—I will not go into that subject now—is barred by reason of the rule against double jeopardy".There are no exceptions to that. Will the Minister confirm that the one hand actually knows what the other hand is doing, and that either there will be 30 exceptions when it comes to extradition cases, or the double jeopardy rule will remain intact for all purposes and all reasons?
Furthermore, the 30 crimes listed in schedule 4 of the Criminal Justice Bill—including robbery, armed robbery, rape, murder and manslaughter—are all very serious. In our media-driven culture, it is inevitable that all cases involving those crimes will have been given great media attention and will be out in the public domain, particularly when the defendant has been acquitted. For the Court of Appeal to make an application for a retrial, it would have to certify that fresh evidence was both "new and compelling". I am extremely troubled by the definition of compelling evidence, as set out in clause 65(3)(c). The clause states that evidence is compelling if the Court of Appeal concludes thatit is highly probable that the person is guilty of the offence.When we couple the media attention that has been given to a high-profile case, on acquittal in the first instance, with the conclusion of the Court of Appeal that it is "highly probable" that the person is guilty, how in heaven's name can the Minister convince the House that the defendant can be guaranteed a fair trial?
On my second point, I am sure that the Minister will be familiar with the work of Professor Sally Lloyd-Bostock. It is a matter of regret to me that this learned academic is not a constituent of mine, but perhaps we 967 can recruit her to come over to Northern Ireland. She is presently working for the university of Birmingham. Before that, she worked in the Oxford university centre for socio-legal studies. She was commissioned to carry out research for the Home Office in 1995 into the effects on magistrates and juries of the disclosure of previous convictions. In her more recent research paper, headed "The Lord Chancellor's Department: Research 2000", Dr.—now Professor—Sally Lloyd-Bostock concluded:The results showed clearly that the magistrates' ratings of likely guilt were significantly affected by information about the defendant's prior record … Most magistrates thought that neither magistrates nor juries should learn about previous convictions until after the verdict, and felt that the information was dangerously biasing.Given that that learned professor is an expert in this field, it ill behoves the Government to set aside research of this quality, carried out by someone who was commissioned to carry it out by the Home Office in 1995 and, more recently, by the Lord Chancellor's Office. I ask the Minister to address the points raised in that research.
I would like to pick up a couple of points made by other hon. Members. The hon. Member for Sunderland, South (Mr. Mullin) rightly drew attention to the fact that what increases our constituents' confidence that crime is being successfully fought is the visibility of police officers on the streets. He mentioned the number of police officers on bicycles. I am not simply asking for the police to be put back on bicycles, although that would be helpful. There is no doubt that, with crime rates rising, our constituents need a sense of confidence that the Government intend to tackle crime. That involves recruiting more police officers, and the visibility of the police officers is the key.
The hon. Member for Southwark, North and Bermondsey (Simon Hughes) made the valid point that an awful lot of young people should be kept out of the court system and not put into jail, and should instead have to make restoration to the public for whatever crime they have committed. I would draw to the Minister's attention the restorative justice schemes that have now been built into Northern Ireland's criminal justice legislation. We have just had a major review, and the Justice (Northern Ireland) Act 2002 went on to the statute book in July. About one third of that important piece of legislation was dedicated to youth justice, and particularly to accredited restorative justice schemes.
Let us consider the difficulties that we have had in Northern Ireland with paramilitary violence, including the so-called punishment beatings, which, in one extreme case, involved the crucifixion of a young man. Having had his legs broken, he was nailed to a fence through both hands. We have seen appalling crimes by paramilitaries, both loyalist—I have to say that loyalists are utterly ruthless—and republican. They carry out a type of justice in their own right, in which they beat up young people for joyriding and other antisocial crimes. We have tried to deal with this by introducing restorative justice schemes. In my constituency we have an exceedingly good scheme up and running on the Kilcooley estate in Bangor. Those schemes involve the perpetrators of the crimes of vandalism, joyriding or intimidating elderly folk—I could go on and list many 968 more—making reparation to the older person or other victim, and saying sorry. Those are accredited schemes, and I draw the Minister's attention to the possibility of building into future legislation, if not the Bill, restorative justice schemes, which have worked in Northern Ireland when they are accredited.
§ Mr. David Kidney (Stafford)
It is a pleasure to follow the hon. Member for North Down (Lady Hermon), and I begin with the same point: we have had a proliferation of criminal justice laws in this country since 1984. Sadly, a lot have not stood the test of time, so it will be interesting to see whether the Bill suffers a fate similar to the majority of that legislation or proves more lasting.
I draw attention to a couple of points that will give the Bill a lasting nature, at least in certain areas—the inclusion of the principles of sentencing and the establishment of the Sentencing Guidelines Council, which is an important development for the future. Furthermore, a Bill has begun its life in the other place that will unify magistrates court and Crown court structures and which, equally, will bring significant change. So the package that we shall deal with in this Session contains lasting elements.
I begin my detailed comments by referring to jury trials. It might be helpful to point out that this country uses three classifications of offence. Summary-only offences, by their very nature, do not involve jury trial, as they may be tried only by magistrates summarily. On either-way offences, the defendant has the right to choose either summary trial before a magistrate or trial before a jury in the Crown court. On indictable-only offences, the defendant gets no choice and must be tried before a jury in the Crown court.
I set that out to show the difference between this Bill and the previous Bills through which the Government attempted to make changes to jury trial. The mode of trial Bills aimed at those either-way offences and provided that, instead of the defendant having the choice of where to be tried, the court would say whether that person could be tried by jury.
I remind the House that I was fanatically opposed to that proposal on principle, and I spoke and voted against the Bill that was introduced in this House to give it effect. I was overlooked for service on the Committee, but I returned to the issue on Report and even tabled an amendment, which some Members will recall. It is a great delight to me that the Government have abandoned that way of proceeding on trials and have introduced in this Bill my amendment on magistrates not committing people to the Crown court for sentence if they have dealt with the trial themselves. I feel happy about the Government's attitude to the Bill, although a couple of Members have had difficulty with accepting yes for an answer, even though the Government have said that that is not their intention and it is not what they are doing through this legislation.
I am happy with the changes that have been made there, but there is worry around the House over those offences that are indictable only, but for which the Government propose some change to jury trial. It is worth saying a word about them. On long and complex cases, the matter involves degree rather than principle, because there would be a danger of a jury losing the 969 battle—losing the thread of what they are there to do because of the sheer weight of the proceedings—owing to a war of attrition in only a small minority of cases. That would occur, I hasten to add, only because of the tactics of the parties to the trial and not because of any difficulty for the jury in coping with complex facts and situations. I entirely agree with those Members who said that jurors are sensible people who can take in a lot. Therefore it follows that I am talking about exceptional cases in which it is right that there should be no jury trial.
The same goes for jury tampering. Surely it is unacceptable to the House that somebody could get an acquittal by tampering with the jury. Obviously, the response normally stops short of saying that there will be no jury to try a certain case, as we can protect a jury and ensure that anyone caught tampering with it is treated as one who has committed a serious criminal offence; and we can limit the number of cases in which a judge has to say, "There is no way that we can have a fair trial with a jury because of the attempt to interfere with that jury." Again, a small number of cases would be involved, but being able to give such a response would be useful weapon in the judge's armoury.
§ Mr. Grieve
The hon. Gentleman will have noted the comments on the difficulties that would be likely to arise in practice when a judge continued to hear a case after a jury had been discharged because of tampering. I suggest that, in reality, it would be necessary to start again. He may also agree that, in reality, tampering involving 12 jurors would be unlikely, although it is likely that such a jury would be unable to return a verdict. However, if adequate protection were in place and supplied for the retrial, especially if there were a fear that a previous jury had been tampered with, the chances are that justice would be properly done with a jury. There would be no need for a judge to sit on his own.
§ Mr. Kidney
The hon. Gentleman's points are contradictory. I agree with and accept the first, which is that it would be difficult for a judge to continue the trial knowing what the judge knows, as he or she would be prejudiced. I do not agree with his second point, however, as there would be few cases in which the judge said, "No amount of protection and no amount of retrial is satisfactory for the conduct of justice in this case. I believe that it needs no jury and a judge-only trial." That may happen, but only in a small number of cases.
The third consequence of the Bill for judge-only trials would arise if the defendant chose such a trial. I spent all my time in the debates on the previous Bill arguing that the defendant's choice should be upheld, so I find it difficult to disagree with the Government on that point now, as they have come round to my view. Disagreeing over that would be an unusual choice, although I see that such events could arise from time to time.
§ Mr. Grieve
I am grateful to the hon. Gentleman for giving way again. He refers to upholding defendant choice—whether he should have jury trial or not—but the Government have included a rider that that choice will be denied in certain cases. Does not that in some 970 way negate their argument, which is, "We are offering you a choice between two systems that we consider to be equally justified—it is up to you."?
§ Mr. Kidney
May we return to that in Committee? I understand the point but, equally, I understand the Government's worry about some people appearing to have a cosy relationship with judges—they do not need a jury because they will get off if they know the judge.
I want to include a footnote on jury trials in either-way cases, as some provisions, which nobody has objected to tonight, would reduce the number of such trials—again, very modestly. The first would extend magistrates' power of sentence from six months to a maximum of 12. Magistrates would turn away fewer cases that they would have sent to Crown court for trial and keep them for themselves. That would reduce the number of jury trials in itself.
If the provision on a defendant requesting an advance indication of sentence survives to the statute book and if magistrates agree to give such an indication, that would convert some defendants to staying with the magistrates rather than going to Crown court for trial. That, too, would reduce the number of jury trials. For the same reason, custody plus might tempt some people to stay in the magistrates court. Interestingly, there has been no controversy in the House about a smaller number of jury trials resulting from any of those measures.
I hesitate to step into tonight's other controversies. The double jeopardy proposals are very much a response from the whole country to DNA being discovered as a reliable test that almost certainly provides proof positive of someone's guilt of an offence which could not be proved previously because such technology was not available. It was said earlier that this is probably a passing change that involves a few cases in which DNA evidence is available and helps to secure a conviction that could not be secured before. I am happy with that analysis, although none of us can foretell the future or what scientific advances will be made after today. That may mean that the provision remains valid for many years, even after those few DNA cases have been mopped up by the provision.
Tonight's other controversy is the introduction of the defendant's bad character. Interestingly, my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) takes no objection to that one. I am happy about that, because I shall take no objection either, provided that the safeguards are right. That matter should be hammered out in Committee.
Clearly, we have been introducing evidence of a defendant's bad character in cases for over a century. A common-law rule and two Acts dating from 1865 and 1898 have permitted it in some circumstances. Nevertheless, we can surely ask from time to time whether the current rules are adequate. I do not think they are, and I think we are entitled to change them slightly if that is what we believe is right in order to ensure fair trials as between prosecution and defence.
The Bill gives us an opportunity to rehabilitate community sentences as a genuine alternative to prison, and to reduce the appallingly large prison population. That means, however, that we must make the community options robust. It does not help us if the media can report that fines need not be paid, and it does 971 not help us if nothing happens to people who break the conditions attached to community sentences. The Government are right to pay attention to such issues, although extra resources will of course be required. The hon. Member for North Down asked for all the resources to go to police officers, but some should go to, for instance, the National Probation Service, so that it can supervise community sentences and their conditions. Otherwise, people may often break the conditions, which will bring the service into disrepute. It will also mean that more people are sent to prison, because that is the only thing that will satisfy the public mood.
I want to say something about what is, in a sense, a local issue. When I met local magistrates and their clerks to discuss the Bill, I was very pleased with their response. They like the extra sentencing powers that they will have—both the powers relating to imprisonment and the wider range of conditions they can attach to community sentences. They also like—subject to the detail—the proposal for a unified system for magistrates courts and Crown courts. That, I thought, was a positive response. Stafford currently exceeds the national average for fine collection, but the magistrates would like the Government to continue their financial support for fine enforcers so that they can maintain that good record.
The magistrates commented that recent media reporting of inadequate arrangements for fine collection had affected their ability to collect fines. People believed newspaper reports that the payment of fines was now optional, and did not pay. That is an interesting message for reporters.
My last point, in fact, concerns reporting. Since when has it been right for most cases heard in my local magistrates court to go unreported by the local media? I think the reporting of cases is part of the fair administration of justice: people should know which members of their community have been to court, and have been convicted. That is the whole point of the saying that justice must not only be done, but be seen to be done. Let me please the Society of Editors by asking the Government not to overlook the need of reporters to be able to report cases. There are substantial obstacles preventing journalists from doing their job in magistrates courts—an issue that I may be able to pursue in more detail if I am fortunate enough to be a member of the Committee on this occasion.
§ Mr. Nick Gibb (Bognor Regis and Littlehampton)
Bills of this sort worry me hugely. Like the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore), I see no philosophical underpinning for many of the proposed changes. That does not apply to most of the legislation with which we must deal.
The Bill is supported by both Labour and the Conservatives, and of course it contains much that is good. Nevertheless, ending the double-jeopardy rule, allowing hearsay evidence and the admissibility of previous convictions constitute huge changes to our legal system, and, as far as I can tell, they are being proposed for reasons of administrative simplicity rather than on the basis of a deeply held conviction that they are right. They are not about securing justice.
972 These measures do not form part of Labour's traditional view of justice, or of the judicial system; nor do they emanate from Conservative principles. Indeed, I believe that Conservative principles clearly state the opposite. F.A. Hayek—who has had a profound influence on much Conservative thinking over the past 30 years—pointed out that ancient, and therefore sometimes bafflingly obscure, traditions, tenets and principles had evolved over the centuries as a result of hundreds of thousands of instances of experience, and that the cumulative knowledge gained from those was far beyond the capacity of any one human mind. We may not even understand the reason for a particular tradition until it has been abolished, when the errors and catastrophes that it was designed to avoid start to occur again.
That does not mean that rules cannot evolve. Of course they can evolve and change, particularly through specific precedents in the Court of Appeal. That does not, however, mean the wholesale change proposed in the Bill. As my right hon. Friend the Member for Haltemprice and Howden (David Davis) said in a briefing to The Independent in May 2000, ending the double-jeopardy rule would bea serious blow for justice in this country".He said that Britain's "unbreakable" tradition that all citizens are equal before the law and innocent until proved guilty would be "seriously damaged" if the rule was scrapped. He addedIt is a reform I cannot and will not support.So where do these measures come from? They certainly do not come from philosophical belief, but nor, it seems, do they come from experts and practitioners in the legal profession. We have heard from members of that profession in the Chamber today, but both the Bar Council and the Criminal Bar Association strongly oppose the measures to end double jeopardy. According to their briefing,There is a real risk of harassment from the state and press where both believe that the acquitted defendant should be retried … There is a real risk that disappointed investigators, particularly in high profile cases may well wish immediately to recommence investigations after an acquittal, particularly if there is pressure from the media, victims or politicians. Those with previous convictions known to the investigating officer would also be a target. Officers with a personal animus against an accused may wish to pursue him despite an acquittal.If these measures do not stem from philosophical belief and are not demanded by the practitioners, they can only have come from that source of ideas that parties can draw on only when in government—Home Office civil servants, bless them. I fear that once again we are being presented with a Bill based on administrative convenience, with no regard for the historic safeguards that formed the rock on which our freedoms stand. It is a rock that has been chipped away by both parties with increasing speed over the past few years. This is yet another Home Office Bill that deals only with the immediate symptoms, and does nothing to tackle the roots of crime.
The real problem that the Government should be—maybe are—seeking to address in the Bill is the problem of rising crime. Whatever Government figures may suggest, there is no doubt that crime is rising. Britain now experiences more crimes per 100,000 of the population than the United States, Italy, Germany and 973 a host of other countries. The Government may from time to time produce figures that show something else, but I believe that the fact that we have dealt with 12 criminal justice Bills since 1997 speaks volumes.
The question is, how do we stem the rise in crime? Clause 126 sets out "Purposes of sentencing", which it says are punishment, reduction of crime including deterrence, protection of the public and reparation. I consider deterrence overwhelmingly the most important of those four principles, but if prison is to be a deterrent sentences must be of appropriate and sufficient length. Over the past 30 years prison sentences have become shorter, initially as a left-wing experiment to test the validity of prison but later because, under both parties, there was an attempt to control the ever-growing prison population as crime continued to rise. For example, the maximum prison sentence for burglary is 14 years, but the average sentence is just 22 months.
As a libertarian Conservative I strongly believe in the maximum freedom of the individual. I believe in keeping the number of laws, particularly criminal laws, to the minimum necessary to preserve that freedom. Once a person breaks those laws, however, he should be subject to severe penalties. I believe that the increase in crime over the past 30 years is largely due to the increasing leniency of sentencing, and I am optimistic that the Home Secretary agrees.
For many habitual criminals, a prison sentence is merely an occupational hazard rather than a life-changing catastrophe. Eighteen months in prison is a risk worth taking; eight full years is something else.
§ Mr. Andrew Turner
I find my hon. Friend's argument compelling, but he has introduced a mechanistic solution to what did appear to be a problem relating to the way in which the bulwarks that society is built on are being undermined. Which is more important, the failure of society to support and educate those who might commit crime, or the failure to punish them sufficiently after the crime has been committed?
§ Mr. Gibb
My hon. Friend makes a good point about recidivism and rehabilitation in prison, but the important point about the poor recidivism rates in this country is that the sentence itself is not a sufficient deterrent.
I welcome the fact that the Bill contains many provisions to increase maximum sentences, but a lot of discretion will still be left to judges. My concern is that the Bill may well discourage courts from passing further increases in prison sentences. The US has demonstrated beyond any doubt that raising the level of sentences leads to falling crime. For example, in the US, prison sentences for murder are, on average, three years longer than in England; sentences for rape and for robbery are four years longer; and sentences for assault are almost three years longer. Sentences for burglary are two years longer than in England and Wales. The consequence is that burglary rates in the US have declined dramatically since the mid-1980s—from about 75 burglaries per 1,000 households to just 28. Violent crime in the US has fallen year on year since 1994, to the lowest level ever recorded by 2001. In 1994, there were 51 episodes of violent crime per 1,000 population; by 2001, the figure had fallen to 24.
974 If we in this country are to impose severe penalties on those who have committed crimes, however, we need to be sure that our judicial system is as infallible as humanly possible. We need in place every safeguard possible to avoid errors. We need principles such as the inadmissibility of previous convictions, so that we can be absolutely sure that a jury is not prejudiced in its duty to examine objectively the facts put before it. We need to keep the carefully constructed and evolved set of rules that govern the use of hearsay evidence, to ensure that what the jury is hearing is absolutely what was said. Sweeping away these safeguards will lead to an increase in the number of unsafe convictions, many of which will be traced back to this legislation. Magistrates courts already find 72 per cent. of those tried guilty, and Crown courts find 76 per cent. guilty. As the Financial Times commented recently:the number of miscarriages of justice highlighted in recent decades does not suggest that the courts err on the side of gullibility.There must be no shortcuts on the way to prison. Once a person is convicted, they should serve a sentence that is commensurate with the crime committed. If the state takes short cuts to get a conviction, the reputation of the judicial system will suffer as people lose faith in its ability to convict only the guilty. Notwithstanding the measures in the Bill, the consequence of that will undoubtedly be a reluctance to impose long prison sentences, because of a vague feeling that convictions are perhaps unsafe. That in turn will mean that conviction and punishment will continue to fail to provide the deterrent necessary to bring rising crime under control. In other words, a Bill designed ostensibly to help cut crime will actually result in crime continuing to rise.
I believe that the Bill is fundamentally and profoundly flawed. It will fail to deliver what the public want—less crime—while promising to do the opposite. It will fail to ensure that criminals serve sentences that deter them and others from committing crime in future. The public expect such measures, but I fear that they are not what the Bill will deliver. Instead, it will damage the reputation of the judicial system, and above all it will be responsible for a rise in the number of unsafe convictions and the perpetration of deep injustice.
§ Mr. Alan Hurst (Braintree)
The problem with speaking late on in a debate is not only that most of the good arguments have been made, but so have most of the good jokes. I should begin by declaring an interest—these days, it has to be a vested interest—in that I am a partner in a firm of solicitors.
There are so many aspects of this Bill on which one could comment that the debate could go on for a very long time. With that in mind, I shall seek to address the three salient issues that have troubled Members today, the first of which is, of course, trial by jury. Underlying our comments has been the assumption that every criminal offence can be tried by jury, but as we know—and as my hon. Friend the Member for Stafford (Mr. Kidney) wisely pointed out—many offences are summary only, and do not have jury choice. It is only in certain bands that such choice is available. I am committed at least to maintaining the existing bands, so that a defendant retains the choice of being tried by jury.
975 I accept that the two Bills that came to a sorry end in the previous two Sessions were much more wide ranging than the current proposal. One could argue that the latter is pragmatic—that we are seeking to tidy matters up and to help out jurors, so that they do not have to deliberate for too long, and so that we can create a family friendly jury system. However, I am not certain that juries were ever family friendly. Some things in life are by nature quite hard, and the preservation of some of our essential liberties is sometimes a hard task to follow through in its entirety. The fact that jurors may sometimes be inconvenienced when a trial goes on for a long time may not be a sufficient reason, therefore, to allow a further ebbing of the current jury trial system. On the face of it, such a suggestion seems practical and relatively harmless, but therein lies the danger. When something seems harmless, matters creep forward, but when there is an outright onslaught—such as we witnessed in the previous two Bills—it is easy to condemn and to say, "We are not going down that route."
The question of how to deal with the intimidation of a juror has been well explored and answered fully by other Members, but I would go a little further by arguing that we should consider extending jury trial. In essence, trial by jury has been on the defensive for years. The recent Bills that went the way of the frailty of flesh were not in fact the first attacks on jury trial. Over time, various offences have lost the right to elect trial, and have become summary only. I would argue that one category in particular should have the option of trial by jury: allegations of assault or attack on a police officer or other persons in a position of public trust. I say that because those who are charged with such offences should be judged by their fellow citizens. In other words, cases involving victims who are employees of the state should be judged by the citizenry at large. Legislation passed in the 1960s specifically exempted the assaulting of police officers from those categories involving trial by jury, unless it suited the prosecutor to make the charge of actual bodily harm.
§ Mr. John Taylor (Solihull)
Does the hon. Gentleman think that magistrates tend to be too deferential towards, or too believing of, police officers?
§ Mr. Hurst
That view has been current for many years among those who practise in the criminal courts—prosecutors and defenders alike. For that very reason, in cases where police officers or other public officials are the victims, it is even more important for the defendants to have the right to elect jury trial.
Prosecutors get a very bad press these days, but in the main they are wily people. In the past few years, it has become the practice that, where the injuries on the victim clearly constitute actual bodily harm, trial by jury can be elected. The prosecutor or the police may well decide to make the charge of common assault, because by so doing they will deny trial by jury. It could be argued that that subterfuge is an insult to the victim. The victim has clearly been assaulted—they have suffered actual bodily harm—but the defendant is charged with common assault, which used to be regarded as the most trifling of matters. Perhaps we need to look again at the 976 question of which offences are summary, and which are either-way. There needs to be an adjustment back in favour of jury trial, rather than continuing on the road to excluding it.
I shall touch briefly on the question of double jeopardy. We humble solicitors in the magistrates courts do not often deal with great cases, at least not with their final stages, although I know that some learned and hon. Members have done so. However, it is possible to see the grave difficulty that could arise from the proposal in the Bill. It has been argued that we should be allowed to reopen cases in which evidence based on later scientific advances, such as DNA testing, had not been available. We were told that protection and safeguards would be put in place, so that the information would not percolate down to the second trial jury.
However, there are newspapers in foreign countries such as Scotland, the Republic of Ireland, France and so on. People who travel will be able to read in lurid detail about a trial, as they allegedly did about the Duke of Windsor and Mrs. Simpson. People who travelled abroad knew about that case, whereas those who stayed at home did not. Those of us who live near Stansted know that everyone now travels abroad, and that similar information would be widely spread.
Even if people did not travel so widely, there is no doubt that titbits of judicial and legal gossip would be peddled on the internet. Few jurors would be able to approach a case fresh, saying that they knew nothing about it. They will know about any such case, as it will be notorious.
If we adopt the proposal in the Bill, there will be no verdict of acquittal, but of "not proven, yet". Essentially, the ending of the double jeopardy rule would mean that all cases that did not result in a guilty verdict would be considered to be "not proven, yet". That would remain the decision until the state decided to open up the matter again, with the leave of the courts.
Like other hon. Members, I shall touch on the matter of character and previous convictions. I admire the confidence of my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews). It is no trouble for him to brush aside the fact that a client may have a number of convictions. I concede that there may be times when that would be the right thing to do, tactically. Generally, however, as the right hon. Member for Maidstone and The Weald (Miss Widdecombe) noted, most jurors are likely to say, "If he's done it before, why not this time?"
For example, a person with previous burglary convictions might be charged with, say, drink driving. The proposal in the Bill would mean that that person's character could be attacked. What about the difficulties arising from a person's demeanour or dress? If the person charged with drink driving arrived in court with a briefcase, the prosecution could say that he should have a striped jersey and a bag bearing the word "swag", and that he was a burglar trying to delude the court into thinking that he was a clerical worker.
We can go down a ludicrous road and make it almost impossible for a defendant's character not to have a bearing on a case. If that happens, the balance will shift heavily towards conviction. That may be the purpose of the change. However, the balance will also shift in favour of trial by judge alone. If a person faces the risk 977 that all of his past life could come out before a jury, he may well opt, if the case is one for which it is permitted, for trial by judge alone.
For those reasons, I hope that it is clear that I have my doubts about some of the important parts of the Bill. The evil to be remedied may not be sufficient to justify the evils of the remedy. I am concerned about the Bill. I hope that my right hon. Friend the Home Secretary and other Ministers will think hard and long about these matters as the Bill passes through the House.
§ Mrs. Annette L. Brooke (Mid-Dorset and North Poole)
Like many of those hon. Members who have spoken before, I accept the need to reform the criminal justice system, but not at the expense of increasing the risk that innocent people will be convicted.
My hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) has outlined the three problems that especially concern Liberal Democrat Members. The same concerns have been expressed by hon. Members of all parties, in particular about the need to retain trial by jury.
The three main issues have been discussed pretty thoroughly and, as the hon. Member for Braintree (Mr. Hurst) said, by this time of the evening there is some repetition of the points to be covered. I shall therefore look at other issues, but I do not in any way belittle the importance of the three issues that are of such great concern.
I welcome some of the proposals in the Bill. In particular, I welcome the recognition that the rehabilitation of offenders is a major goal of sentencing. I look forward to further developments in terms of restoration and reparation, and I welcome the comments made by the hon. Member for North Down (Lady Hermon).
In a general sense, it is important to go beyond what is being said about crime and examine some of the potential outcomes. We need to get right the perspective and balance involved in being tough on crime and its causes. All hon. Members share the aim of controlling and reducing crime, but an overwhelming emphasis on being tough on crime has had unintended consequences that have exacerbated existing problems and created others. In saying that, I realise that I am rather disagreeing with the previous speaker, the hon. Member for Braintree.
Although the Lord Chief Justice and many other key figures have publicly recognised that we should send fewer people to prison, and that short prison sentences generally serve no useful purpose, it seems that the phrase "tough on crime" has merely come to mean that more people are locked up. There are more than 72,000 people in prison in this country, and more than half of our prisons are overcrowded. Attempts by the Prison Service to make prison a constructive experience are being seriously hindered. Reoffending rates are still as high as 60 per cent.—although I am sure that the Under-Secretary of State for the Home Department, the hon. Member for Leeds, Central (Hilary Benn), will tell me that they are falling—and the rates are even higher for juveniles and young offenders.
On 30 September this year, there were 2,633 children locked up in 25 jails in England and Wales. Young girls are being held in adult prisons, despite a commitment to 978 remove all those under 18 from prison by April 2000. In both instances, there are huge issues concerning the distances from home at which those young people are being held.
§ Andrew Selous (South-West Bedfordshire)
Would the hon. Lady care to respond to my hon. Friend the Member for Bognor Regis and Littlehampton (Mr. Gibb), who spoke about the situation in the US? Over the past few years, longer sentences have led directly to a decrease in crime there. What is the hon. Lady's response to that?
§ Mrs. Brooke
I have a coherent argument, from which I shall not digress. However, when we talk about shorter sentences, we are talking about sentences that are of less than 12 months. I would need much more specific information about the length of the sentences involved before I responded to the hon. Gentleman's question.
Last week, the Howard League for Penal Reform won a judicial review against the Home Office. The High Court decided that the Children Act 1989 applied to children held in prison. Today, I saw for the first time the press statement issued by the Home Secretary, and one sentence leaped off the page at me. I was somewhat horrified. It said:The court has ruled that one sentence of our policy document needs to be corrected to reflect this.The matter is very important, as this was an historic judgment. To be fair to the Home Secretary, I should add that the statement goes on to say that there is deep concern and that many things need to be improved.
We are talking about reforming the criminal justice system, but what are we doing to improve the treatment of children? The criminal justice system should treat the children who come before the courts as children whose behaviour has been unacceptable, rather than as criminals who happen to be children. The Bill is sometimes not clear about whether its provisions would apply to minors as well as adults. That problem will need much scrutiny.
For example, mention has been made of the definition of bad character. I am not sure about whether that applies to minors. I would also like the alcohol treatment requirement to be applied to minors, but that is not entirely clear. It seems unbalanced that under-18s can be eligible for drug testing and treatment but not for alcohol treatment, but we know that alcohol is an enormous problem among young people.
I always like to welcome the many positive initiatives in our local communities that the Government have introduced. I know that some people have concerns about proposals for parent orders and that there are questions about them, but research shows that they have produced very good results. Similarly, there are questions about referral orders, but we need to consider the research.
Individual support orders will accompany antisocial behaviour orders. As I have said many times, I dislike the idea of having a stop measure alone, without accompanying measures. I will be interested to see what is involved in an individual support order.
Being tough on crime has the connotation of locking more and more people up. It costs the taxpayer a great deal of money and, in certain circumstances, 979 it reinforces criminal behaviour. At least one newspaper report has suggested that the changes proposed in the Bill could result in having more than 100,000 prisoners before the end of the decade. That would cost an extra £2 billion a year on top of the £3 billion a year that the Prison Service already costs us.
§ Mrs. Brooke
I should like to make progress.
Some proposals in the Bill could have advantages, such as that to introduce a new indeterminate sentence for serious violent offenders. In very exceptional circumstances, and with certain caveats, that could have advantages, for example, it would enable an offender's progress to be regularly reviewed during a prison sentence so that he could be released if and when it was safe so to do. However, it is important that there is ultimately a court decision on that offender.
In principle, I welcome the new custody plus sentence, which will ensure that short-term prisoners are subject to supervision on release. At present, short-term prisoners receive little in the way of rehabilitation while in prison and are not under supervision when they leave. Not surprisingly, they have a high rate of reconviction and are responsible for much of the high-volume crime that is so troublesome and distressing. However, if custody plus sentencing is to be successful, it must be backed by resources to fund probation service supervision and efforts by voluntary agencies to help with accommodation, employment and mentoring. That is crucial to prevent reoffending.
I recently raised with the Department the issue of adequate funding in relation to early release with tagging. I was given the impression that the money was being spent. However, a number of agencies and organisations share my concern about resources. Indeed, it will take time to recruit and train sufficient probation officers even with adequate resourcing. The Howard League for Penal Reform suggests that the proposal should be deferred until it can be delivered properly. That would be a shame because it is a good proposal, but it shows the strength of concern about the need for probation officers to be in place to make tagging work properly.
There is a risk with the custody plus sentence in so far as the courts may find it an attractive proposition for offenders who currently receive community sentences. It is crucial that the sentencing framework strongly dissuades courts from passing short-term prison sentences as opposed to a straightforward community sentence. There are opportunities to develop excellent practices across the country with community sentencing. We need to avoid a situation in which more people end up in prison because they have defaulted on a community sentence. To my mind, having a tough community sentence means having a good one that works—people stay on it and it leads to a reformation of behaviour.
I have some doubts about the proposed intermittent custody sentences. There is an attraction in the argument that offenders will be able to maintain jobs, family ties and education. The burden on society is less 980 and there are positive contributions. However, an offender considered for such a punishment will not be perceived as a threat to society. I wonder whether it is right to put such people into our already overcrowded prisons, creating extra administrative burdens and burdens relating to travel. Will it be a workable proposal?
The proposal to empower magistrates courts to pass prison sentences of up to 12 months could also prove to be a mixed blessing. It will reduce waiting times on remand if offenders who would otherwise have been committed to the Crown court are dealt with by magistrates instead, but there is the possibility that magistrates may pass prison sentences of nine or 12 months where the Crown courts might have imposed a community sentence or a shorter prison sentence. We must be very sure about our guidelines.
I believe that it is important to have consistent leaderships at all levels to support a reduced use of custody in appropriate circumstances to make sentencing truly make sense. I am excluding serious and dangerous offenders from my comments, because I agree with other hon. Members that imprisonment should be a penalty of last resort when no other sentence is adequate for the protection of the public and the severity of the crime. It is so important to develop well-supported, worthwhile community sentences with the objective of being smart on crime. Above all, we need to be effective on the causes of crime by tackling them with better educational, housing and employment opportunities and well-structured youth programmes. These issues must not be forgotten when changes are made to the criminal justice system. The early intervention through sure start is a major breakthrough and we are beginning to see excellent work with crime and disorder partnerships and the youth offending teams. However, there is so much more to be done, and we must not forget that while we are debating the details of the Bill.
§ 8.7 pm
§ Mr. Marsha Singh (Bradford, West)
I would like to turn the focus of the debate on to the victims and communities suffering from crime, as that does not seem to have been addressed so far. Those communities and people, in working-class and deprived areas, face crime on a daily basis. They face crime committed against their families, themselves and the wider community. They will understand and support the measures in the Bill. Those are the people for whom I wish to speak today.
Those people understand implicitly the comments of the Home Secretary when he said recently that when the criminal justice system works badly, everyone suffers. He said that at the moment, too many offenders escape justice and cases drop out at every stage of the process, often because of court practices that need modernising or because of tactical manoeuvres designed to disrupt the justice process and secure acquittal of the guilty. The fundamental principle remains that the prosecution must prove its case, but that does not mean that the system should enable a defendant to obstruct justice by inaction or by abuse of the system.
The people with whom I am concerned understand that only a fifth of the cases taken up by the police result in conviction. They know that the criminal justice 981 system is letting them down. It is to them that we owe a duty to improve the system and to improve the quality of their life and security, which is impaired by crime every day.
I support the measures in the Bill with very few reservations. I will comment briefly on only a few because of the time constraints.
Clause 3 allows for street bail, which should give police officers greater flexibility in dealing with offenders. A Library research paper noted that if only 10 per cent. of arrests were dealt with in that way, 390,000 patrol officer hours could be saved—equivalent to 200 police officer posts. That potential alone should recommend the clause.
Clause 5 will extend the detention time limit for any arrestable offence to a maximum of 36 hours. That period applies only to serious offences at present. Although I am not fully convinced of the need for the proposal, I am prepared to accept the contention of the Association of Chief Police Officers that the initial detention period may provide insufficient time for the investigation due to delays elsewhere in the custody process; for example, when intoxication renders a suspect unfit for interview, the provision will be helpful.
Clause 23 deals with conditions on bail before a charge is made. I concur fully with the conclusion of the Select Committee on Home Affairs, which states:We accept that a power to impose conditions on bail before charge is a necessary and logical part of the move towards charging by the Crown Prosecution Service.Clause 84 is one of the most controversial elements of the Bill. It will allow evidence of a defendant's bad character to be admissible automatically in a range of specified circumstances. I take a simple view of that matter—as will my constituents. Most of them cannot understand why a person's record is not revealed automatically, and I agree with them.
Many of my constituents have heard criminals outside the court boast about their criminal record. What is good enough outside court should be good enough in court. No one has thrust a criminal record at such people. They gain their CV of their own accord by breaking the law, so my constituents and I believe that their full CV should be available to the law when they appear in court.
Although I should like to refer to many other clauses, IL shall speak briefly on double jeopardy and then on trial by jury. It would be completely intolerable if the murderer of a child was acquitted and subsequently DNA evidence became available. My community could not support that and nor could I. I do not understand the principle involved. If somebody commits a heinous crime and evidence—especially DNA evidence—crops up later, why should that person get away with their crime? Why should not the state have a second bite at that cherry?
If such people are acquitted, it is because they have lied to the court. Why should people be allowed to benefit from lying to the court? My constituents cannot understand that and nor can I. If people have lied to the court and new and compelling evidence has been uncovered, we should have a second chance to hear the case.No one should benefit from lies. No one should escape the consequences of their crime.
982 The proposals on trial by jury are not a complete assault on the jury system. The provision is small but positive and deals with lengthy and complex issues. They may involve intimidation of jurors, terrorism cases, gangsterism or organised crime. If juries are intimidated, it is right and proper that cases should not fall by the wayside or be affected by such actions.
Finally, I congratulate my right hon. Friend the Home Secretary on the reasoned and reasonable way in which he introduced the Bill to the House. I wish him and his team every success in steering the Bill to a successful conclusion.
§ Mr. Andrew Turner (Isle of Wight)
May I point out to the hon. Member for Bradford, West (Mr. Singh) that middle-class communities are just as entitled to the protection of the law and that they feel the impact of crime as severely as other groups? Of course, I recognise that crime makes the greatest impact on working-class and deprived communities and we should bear that in mind at all times.
The Bill is good in parts, but it has no fundamental underlying principle, as my hon. Friend the Member for Bognor Regis and Littlehampton (Mr. Gibb) pointed out. I welcome some of its provisions, which give me hope, but I regret others. I also regret that there have been some omissions.
I welcome the proposal that the disclosure of previous convictions should become easier. I do not share the view that a jury cannot be trusted with that information. As I said during the debate on the Gracious Speech, for many years an underlying failure of those of us who rule or who are elected to this place has been that we do not trust the public with information to which they are entitled and that we would expect to receive.
I also welcome the changes in eligibility for the avoidance of jury service. We can hardly criticise juries for being incapable of taking on board the information that they are given, whether it relates to previous convictions or to difficult fraud cases, if those who are more capable, at least by education or profession, find it easy to escape their civic responsibilities for jury service.
I welcome those two provisions, but I have a greater number of regrets. I regret the proposed reduction in eligibility for jury trial. The Government have not yet made their case. As hon. Members on both sides of the House have observed, the Government began by attacking jury trial from one direction and are now attacking it from another.
Although I accept that some cases are especially difficult or time consuming, it cannot be impossible to empanel a jury that is capable of devoting enough time and energy to its civic responsibility. I respect the hon. Member for Stafford (Mr. Kidney) and I listened carefully to his arguments, but I am still unable to understand why he supports the change.
There are several omissions on which I invite the Minister to comment. One of the omissions is very narrow, but I feel it particularly in my constituency, which, as the Minister will know, has three prisons, one of which has an enviable record in the treatment of sex offenders. However, it also imprisons people from the Channel Islands, which have a different judicial process.
983 The Channel Islands do not have the same safeguards on release as those for people imprisoned in this jurisdiction. The arrangements for the supervision of prisoners released from Albany who have served sentences imposed by Channel Islands' courts are different. That is a matter of concern to some of my constituents. They fear that those prisoners, when released, can remain in my constituency or in other parts of the United Kingdom without supervision. That supervision would be definitely imposed on those who have been convicted in this jurisdiction.
The second issue on which I hope some changes will be made as the Bill progresses through the House and the other place is that of pleas in mitigation. Those in the legal profession, whom the Home Secretary likes to malign from time to time, deserve every bit of the Home Secretary's opinion of them where they exercise the greatest inventiveness with the least possible evidence to demonstrate to judges and magistrates why a convicted defendant should not serve an appropriate sentence.
I am sure that judges and perhaps many magistrates will say that they can see through the arguments put by the defending solicitor when he comes up with a host of stories about how the criminal has perhaps suffered a deprived childhood or has just made up with his girlfriend—and they do—or perhaps has found a job and that any kind of custodial sentence would mean that the job would be lost. However, a great weakness in the whole system is that the truth or accuracy of those assertions is not tested in court. All that the solicitor has to say is, "I am instructed that these are the circumstances in which my client finds himself." The judge or magistrate must judge entirely for himself, without any evidence, whether those claims are accurate.
A third omission, on which I should like further work to be done, is that of unduly lenient sentences. Many hon. Members will perhaps be surprised to hear that they, the prosecution and the victims of crime have only 28 days to refer a case of an allegedly unduly lenient sentence to the Attorney-General for action. I argue not that 28 days is too short a period, but that more information should be made available, particularly to the victims of crime, as to their powers to take back such matters to the Crown Prosecution Service or the Attorney-General.
The failure of judges to impose what are seen as reasonable sentences is perhaps one of the greatest irritants to the public. They see that the police have taken the trouble to secure the evidence, the CPS has taken the trouble to prosecute and the courts have provided a conviction, yet the judge is convinced for some reason or other that a short rather than a lengthy sentence is appropriate.
I have dealt with such a case in my constituency this week. It involves someone who died after being intentionally kicked by a drunken man who had made threats of killing and had intimidated other witnesses. He received a two-year sentence. I am pleased to say that I have had the opportunity to refer the case to the Attorney-General.
The Bill fails to deal with a huge setback to the effective treatment of life prisoners: the recent judgment about the Home Secretary's powers to set a tariff. 984 Perhaps Ministers intend to deal with that by some means or other in the Bill, but I believe that we should reverse the judgment. There is no means to deal with the issue effectively other than to give back to the Home Secretary the powers that he had before that judgment. I do not wish to be told that that is an unexpected or unwarranted effect of the Human Rights Act 1998. The Government are responsible for that Act and, if necessary, they must admit that it was wrong.
I also hope that the Government, having dealt with many minor changes, will now develop some serious measures to tackle crime and to defend the innocent. Those measures must deal effectively with the causes of crime, one of the most significant of which is the drugs culture. Another of those causes is poor and inadequate parenting, a third is human greed and folly, and a fourth is the simple failure of many people to control primitive urges. Underlying the latter two is something that, all too frequently, we fail to spell out to our constituents and to others—that there is a link between cause and effect.
At the risk of resorting to anecdote, I shall tell the story of someone in my constituency who has now been evicted from her council house by the Medina housing association. I congratulate the association on that eviction because her children persistently offended neighbours. Her argument was that they were only children, and that it was not her responsibility. It is, of course, her responsibility, and the Minister agrees that it is. Far too many people are beginning to feel that not only are they not responsible for the acts of their children and grandchildren, they are no longer responsible for their own acts. Only when we address that and re-establish the link between cause and effect will we truly succeed in conquering the causes of crime.
§ Mr. Paul Stinchcombe (Wellingborough)
I am grateful for the opportunity to make a brief contribution to this important debate on an important Bill. I shall concentrate on parts 10 and 11 of the Bill, which, as we know, contain some of the most controversial measures. They would abolish two long-standing principles of common law by which the rights of the accused have hitherto been protected: the double jeopardy rule and the rules governing the admissibility of evidence of bad character in criminal proceedings.
At the outset, I want to set out the analytical framework that guides me as I approach those two proposals. It is made up of just three basic principles, but I believe it to be robust. First, the purpose of the criminal justice system is twofold: not just to protect the innocent from the guilty but to protect the innocent from conviction. Secondly, the criminal justice system must therefore permit evidence to be adduced by the prosecutor if, but only if, the prejudice done to the defendant is justified by the probative value of that evidence. Thirdly, we should prevent evidence of that probative value from being admitted to the court only if that is justified by some other public interest of compelling importance. With those three basic principles in mind, let me look first at the rule on double jeopardy and then at the rules on the admissibility of evidence of bad character, and thereby come to a conclusion on the Government's current proposals.
985 As the right hon. Member for Hitchin and Harpenden (Mr. Lilley) said, the rule on double jeopardy is ancient, dating back some 800 years in our common law tradition. I agree, therefore, that it is hardly a rule that we should discard lightly and without deep reflection guided by the principles that I have described. I must say, however, that a lot happens over eight centuries. Eight hundred years ago, we did not have the advantage of contemporary forensic science. No second trial all those years ago could have brought forth previously missed evidence, capable of proving the identity of someone from a spot of blood too small for the human eye to see. All of that has changed. Forensic scientists are now capable of assisting the judicial process in ways that would have been wholly unimaginable to our forefathers. First came fingerprinting, and then genetic fingerprinting—DNA testing. I must tell the right hon. Member for Hitchin and Harpenden that progress will continue. It does not stop now. There will be corneal mapping and facial mapping. All sorts of different scientific advantages and advances will be available to future generations.
Those technical advances can bring forward compelling evidence of probative value that could not have been adduced when the double jeopardy rule was first established. When such evidence can prove conclusively the innocence of someone accused of crime, it is admissible because of that probative value, and because the innocent should not be convicted. Likewise, when such evidence can prove conclusively the innocence of someone previously found guilty of a crime, it is admissible, so that an appeal against conviction can succeed. Indeed, when such evidence can prove conclusively the guilt of someone for the first time accused of an offence, it is again admissible, and quite properly so. Its probative value demonstrably justifies the prejudice that would be occasioned to the defendant.
We must therefore ask ourselves a fairly basic question. What on earth is the compelling public interest reason that demands that when exactly the same evidence of identical probative value can help prove the guilt of someone previously found innocent of a serious crime, our criminal system must by operation of law ignore it? The reason cannot be for fear that a second trial can never be fair, because we already allow second trials and we know that they can be fair. It should never be for fear of sloppy police investigations. That would he a truly appalling basis upon which to frame the legislation of this country.
Surely to goodness, the reason cannot be for fear of oppression by an over-zealous prosecutor. That made sense 800 years ago when the rule was first established, in an age of trial by torture and mediaeval monarchs. Then, the rule had genuine civilising purposes. It was to protect the citizen from the oppression of the state and to prevent the mediaeval monarch from dragging his opponents repeatedly to the court, subjecting those citizens to the stress, ordeal and expense of repeat trials. Then we did not have the Human Rights Act 1998 and the police and criminal evidence procedures that we have now to protect against the abuses of processes. Now we have protections against such oppression.
Quite simply, the march of time has done away with the justification for double jeopardy—when judged against the guiding principles—through advances in science, human rights law and criminal procedures. If 986 the criminal justice system fails to catch up with those changes, and if, for no good reason, it fails to allow such evidence to be adduced, it will fail to achieve one of its two principal purposes. It will fail to protect the innocent from the guilty. That will bring the criminal justice system into disrepute.
§ Mr. Stinchcombe
Will the hon. Gentleman allow me to finish my remarks? I know that hon. Friends wish to speak.
If the criminal justice system fails to catch up, the parents of raped and murdered sons and daughters will be told by scientists that the villains—the people who committed the crime—are known and have been identified, but are walking free.
I want to apply the same consistent principles to the Government's second proposal—to abolish the rules that prevent evidence of previous bad character from being admitted save in exceptional circumstances. Does that proposal meet the tests of principle that I have set out? I have to say to my hon. Friend the Minister that the answer is a little less clear.
Those common law rules have been developed by judges over the centuries precisely to apply the three principles by which we should be guided. The very reason for the common law prohibition on the general admissibility of evidence of past convictions is that such evidence can be massively prejudicial to the accused, while having absolutely no probative value at all in respect of the offence with which the accused is currently charged. In lay terms, proving someone was a naughty boy before does not remotely mean that he has been a naughty boy again.
The common law therefore requires more than the existence of a past conviction before it can be admitted in evidence. It generally requires more even than conviction for the same offence. Indeed, admitting evidence of that past conviction would be even more obviously prejudicial to the accused, without necessarily raising the probative value of the fact of that past conviction one little bit. What the common law requires before a past conviction can be admitted in evidence is something beyond the fact of that conviction. It requires something additional and something sufficient to raise the probative value of that conviction, so that it justifies the prejudice that would be caused to the accused.
It could be that the past conviction was for an offence that was "strikingly similar". That would admit it in evidence. The common law recognises the additional probative value of that fact. It could be something different, as the leading House of Lords case makes clear. However, there should be something to increase probative value before the conviction can be admitted in evidence. I speak as a lawyer, and that seems to be good law. It is in accordance with the principles that I have set out. However, the Bill would do away with that common law and replace it with a new extended statutory code, whereby numerous preconditions for the admissibility of the fact of the conviction are set, including, for example, whether the conviction was for an offence of the same description as the one with which the defendant is now charged. That inevitably means that all such convictions might routinely be admitted in 987 evidence without anything to raise their evidential value. That is precisely what the common law has been developed to prevent, because it would be unfair to the accused.
That in turn raises a question of fundamental principle, which I hope my hon. Friend will address. Do the Government want the courts to admit evidence of past convictions even if the probative value of the convictions does not justify the prejudice to the accused? I do not believe that that is the Government's intention, but if it is, I simply disagree with them. If it is not their intention, however, I cannot understand the benefit of this part of the Bill.
Indeed, there are risks in introducing the extended statutory code in place of common law. One of the benefits of common law over statutory codes is that it is flexible. It is capable of developing to meet new circumstances when the words of legislation are fixed. If we continue to take this route in what is otherwise a good Bill, we could end up removing flexible rules—designed by judges over countless years to meet the three principles by which we should be guided, and are guided in other parts of the Bill—and replacing them with a rigid code, possibly incomplete, whereby evidence might be adduced even though its prejudice to the accused outweighs its true probative value. With the greatest respect, I suggest that if we did that, we would not much improve the existing criminal justice system.
§ Andrew Selous (South-West Bedfordshire)
It is a great privilege to take part in the debate. Unlike many hon. Members present, I am not a lawyer. I am not necessarily proud of that, unlike my hon. Friend the Member for Buckingham (Mr. Bercow). I recognise that lawyers are valuable members of society. They dispense justice and ensure that victims are afforded protection. Nevertheless, I am a lay person and speak with perhaps a little trepidation.
I have twice served on a jury in the Old Bailey. In the past few months alone, I have twice been a victim of crime when I suffered from theft and criminal damage. MPs do not live in another world from their constituents; we live in it alongside them and experience what they experience.
I am convinced that in emphasising law and order in this legislative Session, the Government are addressing the public's No. 1 concern. From talking to my constituents and seeing them in my advice surgery week by week, and from the information that I have gathered from the survey and polls that I have conducted extensively in my constituency, I know that their No. 1 concern is crime, antisocial behaviour and the fear of crime. Notwithstanding the many problems that we have to tackle in our public services and elsewhere, my constituents say to me time and time again that crime and antisocial behaviour is their No. 1 concern. So I understand why the Government have emphasised doing something about it.
I was struck by the remarks of my right hon. Friend the Member for West Dorset (Mr. Letwin). He said that in tackling the problem the emphasis should be on apprehension. He said that 80 per cent. or so of crimes are 988 undetected and do not get anywhere near the criminal justice system. We should remind ourselves that that is not the tip of the iceberg—that would be putting it too strongly—but a vast mass of crime, disorder and antisocial behaviour is committed from which our constituents suffer daily. Sadly, such behaviour never gets near the criminal justice system because, perhaps, the police are not there to prevent it, there is no evidence or our constituents are too scared to give evidence to enable due process. To coin a phrase, we should be concerned about apprehension, apprehension, apprehension. That will have the greatest effect for constituents.
On prisons, my hon. Friend the Member for Bognor Regis and Littlehampton (Mr. Gibb) cited interesting evidence on the experience in the United States of America, to which I referred in an intervention, where there is a direct connection between increasing prison sentences and the reduction of crime. We should look at that evidence carefully and try to establish whether there is indeed a causal link between the two factors.
My hon. Friend was also right to point out that although the average sentence passed by British courts is 14 years, on average only 22 months are served. That is a cause of great concern to our constituents. Time and again, we hear people say that a criminal was sentenced to so many years in prison but is out after a much shorter period, often only a matter of months.
As my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) pointed out in an intervention, the decline in crime in this country in the mid-1990s was directly related to the increase in the number of prison sentences arid the length of those sentences. That also has lessons for us as we face these serious problems.
I am delighted to see the emphasis in the Bill on rehabilitation in prison. Obviously, it is extremely sad and regrettable that people commit crime, and we all regret the distress caused to our constituents as a result. However, once the offender has been identified, the question is how we can reform his character to make sure that he does not go on committing crimes.
The other day I heard evidence about prisons in Merseyside. One, which is run by Group 4, has one of the highest rates of rehabilitation work among prisoners, providing effective education in a structured programme throughout the day. That was compared with similar prisons in the area, where prisoners do not have the same opportunities for study and work and for improvement, largely because their schedules are arranged pretty much for the convenience of the prison warders. I ask the Minister to look into the practice in different prisons and different management regimes to see whether we can learn from best practice and export it to prisons throughout the UK. All prisoners should have the best possible chance of improving themselves so that they do not commit crime when they come out.
It is excellent that the Bill contains measures to focus on drug rehabilitation in our prisons. I cannot believe that I am the only Member of the House who is astounded by the amount of drugs available to prisoners. That is something that I cannot understand and I do not accept, and I do not believe that our constituents accept it. We know that drugs are rife in society and that they are responsible for some 989 80 per cent. of the crime committed on our streets. However, it is wholly unacceptable that convicted criminals can continue their drug habit when they go to prison—often, we are led to believe, with the connivance of the prison officers, because being able to control the prisoners makes their own lives easier. I urge the Minister to do whatever is in his power and that of the Home Office to make sure that drugs are not freely circulating in our prisons. We certainly need to concentrate on that problem.
I was struck by the remarks of the hon. Member for Southwark, North and Bermondsey (Simon Hughes), who went through the characteristics that prisoners tend to have. We know that they tend to come from low-income backgrounds and areas of high unemployment and that they are likely to have experienced bad housing. Those are all issues that we need to address, and the Government are trying to do that. That is probably the part of their programme that relates to their slogan about being tough on the causes of crime, and that is right.
However, I hoped the Liberal Democrat spokesman would include in that category family background and parenting, which were rightly touched on my hon. Friend the Member for Isle of Wight (Mr. Turner). I was talking to a sergeant in Dunstable police station the other day about that subject, and he suddenly looked at me and said, "Now I think of it, not one of the 12 top criminals in the Dunstable area has a conventional family background." We can argue about cause and effect, and I agree with many Government Members that poverty, bad housing and unemployment lead to family breakdown—there is a vicious circle—although that is not the case for many families. However, we must get real—the Government must address seriously the things that it can tackle. Initiatives like sure start are excellent, but much more needs to be done. We need a national debate focusing on responsibility in our schools, and on the relationship between parents and children in families. Again, my hon. Friend the Member for Isle of Wight discussed that.
My own constituency does not qualify for sure start despite the fact that it has significant pockets of deprivation. However, I commend Homestart, an excellent charity in Leighton Buzzard, as well as the community link project of the Baptist church in Houghton Regis, which I visited last Friday, on its excellent and worthwhile work with parents and young children.
I very much identify with the comments of my right hon. Friend the Member for West Dorset about the need for juries to be local and accessible. He painted a picture of justice gradually retreating from some of our smaller towns and being focused in larger centres, where it was dispensed more professionally by district judges and so on. That has a strong resonance in my own constituency—Leighton Buzzard has lost its magistrates court, and witnesses and victims must make a long and difficult journey by public transport to court in Luton. How many witnesses will not come forward if they cannot get to court because travel is too difficult, or because they have to take too long off work to give evidence? Justice must be local to be effective. I urge the Government to look at the closure of magistrates courts throughout the country. If they restore them to local communities, that will help them to achieve their objectives.
990 As for double jeopardy, where there is clear new evidence, the Government's proposals make sense—I agree with the hon. Member for Wellingborough (Mr. Stinchcombe) on that. However, the presumption of innocence is an important fundamental tenet of English law. Getting rid of the double jeopardy principle may contravene the European Union's charter of fundamental rights, a matter that has been raised previously by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), and we need to look at that.
§ Stephen Hesford (Wirral, West)
I am grateful for the opportunity to take part in this interesting and important debate. Like my hon. Friend the Member for Wellingborough (Mr. Stinchcombe), I was going to concentrate on two key areas of the Bill that may delay us in the Committee—if I have the honour of serving on it. I shall deal in passing with one of the most contentious aspects of the Bill—jury trial. The Opposition spokesman seemed to be in great difficulty when he dealt with that issue, which leads to me to wonder what is behind the questioning of the Government's reasons for changing jury trial, as set out by my right hon. Friend the Secretary of State. The right hon. Member for West Dorset (Mr. Letwin) appeared to posit an equivalence between the lay magistracy and jury trial, but anyone who has practised in the courts will know that the opposite is true. Defendants elect for jury trial because they want to get away from lay magistrates. It is nonsensical to say that we are denying people's right to appear before their peers within the magistrates system and the jury system. I wonder why the right hon. Gentleman is seeking to make that link; it is not a real link.
The right hon. Gentleman talked about professionalisation of the magistracy—the deputy judges. When I practised in the lower courts many years ago, the defendants whom I came across were happy to appear before stipendiary magistrates. They were dealt with better and faster. Stipendiary magistrates understood cases, and defendants trusted them more than they trusted lay magistrates. Again, I question the right hon. Gentleman's logic.
It has been said that there is no theme in the Bill and that it is a sort of Churchillian pudding. I strongly disagree with that. There is a simple theme, which is about addressing the rights and responsibilities of the criminal justice system so that it focuses more on the rights of the victim. Talking about the number of Criminal Justice Bills is a cheap debating point. There may be one or two more than we would like, but we cannot abdicate our responsibility to get the system right. That is what the Bill is designed to do, and I welcome it. Broadly, that is what most Members are saying.
It has been said that the measure is a populist Bill designed to make a headline. I do not understand that. When my right hon. Friend the Home Secretary introduced the Bill this afternoon he dealt with some of the issues in an attractive and helpful way. On sensitive issues—those of crime and disorder—the Government are encouraging debate about the fundamentals of our criminal justice system. It is wrong-headed to argue that the Government are seeking to be populist while 991 encouraging a debate on what might be seen as a difficult issue for them; no doubt the Opposition would say that in terms of delivery, it certainly is difficult.
My right hon. Friend mentioned enforcement, and talked about seeking the truth during the trial process. I welcome that suggestion. I reject the suggestion of my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews), who said that the trial process is not about seeking the truth. It should be. Some of the measures set out in the Bill are about redressing the balance of the process so as to do just that. The process is not a philosophical game or a tug of war, to determine who is best on the day. It must be more sophisticated than that. Some of the measures proposed in the Bill address that problem.
§ Stephen Hesford
No; I am sorry, but I will give way on another occasion.
My right hon. Friend the Home Secretary mentioned enforcement. I have in mind two of my constituents. Mr. Yeardsley lives on a working-class housing estate at Woodchurch. He was assaulted more than two years ago and was awarded compensation by the courts. The defendant still has not paid the compensation to that elderly gentleman, who comes to see me regularly with a look that is heart-rending. To use an American term, he says that he cannot have closure. He says, "All I can think about is this toerag"—that is the word that he uses—"who assaulted me. He is still out there and he has still not paid his dues."
The second constituent is a serving police officer who was assaulted in the course of his duty. He was awarded compensation, and is still waiting for it. He got in touch with me and asked, "How can I trust the system?" The Bill reconnects the system to those whom it is supposed to serve.
The Bill is courageous. The hon. Member for North Down (Lady Hermon), who is not in her place, mentioned an article in The Times yesterday. It was a good, short write-up of the some of the points that we are debating. The Times also contained an interview with Lord Falconer, who spoke plainly about the reasons for the Bill, and for entertaining such difficult issues. He said:The criminal justice system is not effective and needs reform. About 20 per cent. of recorded crimes are brought to justice, 25 per cent. of offenders commit offences while on bail, 48 per cent. of prosecution files are not properly prepared, 30,000 trials a year are abandoned because witnesses do not turn up, and more than 50 per cent. of defendants who are sentenced to custody or community penalties reoffend within two years.That is a sorry catalogue.
Many parts of the Bill are welcome: street bail, live links in criminal proceedings, the prosecution appeal against early termination, disclosure, drug rehabilitation requirements, widening jury service to pull in the middle classes, and conditional cautions. I suggest to my hon. Friend the Under-Secretary that we should make breaching the conditional caution an offence, so that the system does not go straight from breach of caution to dealing with the original offence. 992 There could be a halfway measure, which would be only a summary offence and might help to maintain the integrity of the caution process without burdening the system downstream.
It has been said that lawyers do not like double jeopardy, but I am sure that most hon. Members received the same Law Society briefing as me, and the Law Society now supports the change. Justice, which is not a right-wing organisation, also supports the provision. It says:this is particularly necessary to deal with the effectively short-term problem of the development of DNA and other scientific testing.Other hon. Members made that point.
I support the Bill's provision on bad character. The Law Commission also broadly supports it in its report, "Evidence of Bad Character in Criminal Proceedings", published in October, which said:The Commission believes that all the rules on admissibility of bad character should be contained in one regulationand:there is currently too much confusion in the current law.The provision would help to codify a complicated area of law, as has already been suggested.
The Times yesterday also included an interview with Dame Heather Hallett, a High Court judge.
§ Stephen Hesford
That is true. She said that she had been trying a murder case involving a multiple stabbing—81 stab wounds—and a severe head injury. The defendant was convicted, but the jury did not know that the man was a knife user and a beater of persons. The judge postulated that it might have helped if the jury had known that. That is sort of case that we have in mind, and I commend the Government on the measure.
If the Bill becomes law in roughly its current state, it will reconnect the police, the Crown Prosecution Service, witnesses and the public.