§ 4.58 p.m.
§ Second Reading debate resumed.
§ Lord Wigoder
My Lords, I hope that it will meet with the approval of your Lordships if we now return to the Prosecution of Offences Bill, and its Second Reading. Your Lordships will recall that a week is a long time in politics. Seven hundred weeks is a very long time in politics. It is just over 700 weeks ago that two young Queen's counsel—one is now a distinguished circuit judge, and I was the other—produced a report for Justice called, The Prosecution Process in England and Wales. Fourteen years late, the Government are at last acting on most of our recommendations. They are I think to be congratulated on moving with their customary rapidity.
We recommended, in the first place, that there should be established a Department of Public Prosecutions to be responsible for the conduct of the prosecutions. That is clear and welcomed in the present Bill. We went on to say that it should be responsible also for the decision to prosecute. I still believe that that would be fairer, more efficient and more consistent than leaving the decision in the hands of the police. But I accept that this would be a major alteration to the Bill. It would not I think be in order to pursue it further when considering the Bill now before the House.
We then recommended that the department should be responsible for all prosecutions, but that in practice it would be necessary to limit it in two respects. First, we said that the prosecution of the trivial and routine 1038 type of offence would have to be left in the hands of the police. I should like to ask the noble Lord to say, when he comes to reply, whether that in effect is the significance of the words in Clause 3(2)(a), that the Director shall,take over the conduct of all criminal proceedings, other that specified proceedings".Are those words in fact intended to exclude for the time being what we referred to as the trivial and routine type of offence?
Secondly, we recommended that prosecutions at present dealt with by Government departments and public bodies should be left in their hands. Again, that I assume is the significance of the words in the same subsection that the Director is,to take over the conduct of… proceedings … instituted on behalf of a police force".We then went on to recommend that the right of private prosecution should not be abolished. I assume that the Government support that position and that that is recognised by this Bill. We believed it to be, and I still believe it to be, a very important freedom for the individual, even if very often it is for a highly eccentric individual.
Then came the crux of the matter. We recommended that the Department of Public Prosecutions should be entirely independent of the police. It would be headed by a Director and would be under, and subject to, the control of the Attorney-General, who would be answerable to Parliament for its actions. That is the crux of this Bill, too, and I welcome it. We went on to say that the department has, of course, a ready-made basis and could conveniently be organised and developed out of the existing staffs of the Director of Public Prosecutions, the Solicitor to the Metropolitan Police and other prosecuting solicitor departments. We then said that in addition to having a strong central organisation it should have regional and local officers throughout the country, headed by assistant directors. It is here that one begins to have one's first real doubts about the Government's proposals. At the present moment, in Clause 1(3), the Director has the right to designate prosecuting officers; but subsection (5) goes on to say that he,shall exercise those powers under the direction of the Director".We shall await with very great interest the White Paper that the noble Lord the Minister promised us. In the meantime, it is perhaps fair to observe that there is no mention in this Bill of any delegation of discretion to local prosecutors; there is no mention of any appointment of regional Crown prosecutors; there does not appear, on the face of it, to be any scope for local decision-making by local prosecutors. I say at once that I accept entirely the principle that there should be a centrally directed service. I am not suggesting there should be a local service responsible to some rather curious form of local supervisory body; but I am worried that, as it stands at the moment, the principal clause in this Bill creates not merely a centralised service—of which I am very much in favour—but an over-centralised service, which I should be very much against.
Then we went on to refer to the staffing of the new department and said that it should be possible to provide status, remuneration and a career structure 1039 which would attract men and women of the right calibre. I believe this is one of the reasons (though not by any means the only reason) why some form of central service would be an improvement on a local service. It would offer to prosecuting solicitors a national career structure which they have been deprived of in the past. However, the importance of providing a satisfactory career structure is bound to lead us to look with some care in Committee, in due course, particularly at Clause 10, which deals with the transfer of staff. I do not want to make Committee points at this stage; that I think would be quite wrong. I am, however, troubled by the expression in Clause 10(2) that the Act,may make different provision with respect to staff employed in different areas".I am not quite sure what that is aimed at, and I should be grateful for some elucidation.
I am troubled by the proposal in subsection (5) of the same clause, where it appears that, for the purpose of computing a period of employment, the period of employment from which a prosecuting solicitor is transferred shall count as a period of Crown employment, but only, so far as I can see, in the singular; so that if a prosecuting solicitor has served a number of different authorities it is only the most recent of those employments which is to count. I suspect that is not intended; it is another matter that will have to be looked at in Committee.
I am deeply concerned also about subsection 6(b) of Clause 10, where it appears that if a prosecuting solicitor, for however good a reason, feels himself unable to agree to be transferred to the new department, he shall lose all his redundancy rights. That I think cannot be correct and I hope that is another matter we can put right when we come to deal with this Bill in Committee.
Having dealt with the question of the staff of the department, we then added this observation; I want to say just one word about this. We thought that the department's staff should have the same rights of audience as are afforded to the staff of the Director of Public Prosecutions. That was a perfectly simple rule, a perfectly simple principle, easily and widely understood. I am dubious about the significance of Clause 4, subsections (1), (2) and (3), which attempt to deal with the definition of the rights of audience under the new procedure. That again is a matter that will have to be explored with care in Committee.
I welcome very much what the noble Lord the Minister said today when he appeared to be indicating that all prosecutions at the Crown Court would in fact be conducted by members of the Bar. I believe it is important that that should be so; and I have no interest to declare because I am no longer a practising member of the Bar. I believe it is important that all prosecutions at the Crown Court should be conducted by those who are totally independent of the prosecuting authority itself. I would add this, if I may. I believe that an independent Bar is one of the mainstays of our democratic system and that any derogation in the rights of audience, however logical the case for each particular step may be, is in fact going to lead to the destruction of the Bar as an independent profession.
1040 I have taken a little time over that particular issue because I am very much aware of the possibility that at some stage on this Bill there may emerge a rather squalid division of opinion between the two branches of the legal profession as to the rights of audience in the Crown Courts under this Bill. I hope very much that that will not happen and that the observations made today by the noble Lord the Minister will be accepted in good spirit by everybody in the legal profession.
Those are the principal recommendations that we made some considerable time ago, and as I say I am happy to see that the great majority of them are now contained in this Bill. I therefore want, if I may, to make comments briefly on only two other aspects of the Bill: first, on Clause 22, which I am bound to say I find not only objectionable but really somewhat ill-thought-out. This is the proposal in the clause which is headed:Reference to Court of Appeal of certain Crown Court sentences".I could understand a system, although I would not for one minute approve it—I would oppose it bitterly—under which if a man is fined £50 when he should have been flogged, he is hauled up to a higher court and they say, "You should be flogged", and he is flogged. This is a system that commends itself to many backward jurisdictions in many parts of the world. But to follow the same example, to haul him up before a higher court so that the higher court can pontificate by saying, "You should have been flogged. Now go away; you are a very lucky man", seems to me to be much more likely to bring the system of justice into widespread disrepute than the present system. I would also add that it would take up a very great deal of time in the Criminal Division of the Court of Appeal, where they are already extremely hard pressed.
I should also like to supplement what the noble and learned Lord, Lord Elwyn-Jones, said, that it would inevitably involve prosecuting counsel in considerations of sentence when it has always been our tradition that he should stand above the heat of the battle. He would be involved. For example, he would be involved in advising the Attorney-General on whether or not the sentence in a particular case was adequate so that an appeal could be considered. He would be involved under Clause 22(2)(b) in actually arguing the appeal that the sentence was inadequate; and he would be involved in any future case in arguing that this case was the same as that case and therefore the sentence should be the same as the court indicated in that previous case.
For all those reasons, I believe that this proposal is thoroughly undesirable and I would also add that it does not take account of the fact that every case differs in detail in its circumstances and in its merits. It is quite idle to say that one can look at one case and say, "The Court of Appeal has suggested that the appropriate sentence is so and so; therefore in a totally different case, with a totally different defendant, it is our view that we should impose the same sentence".
There is one other matter which my noble friend Lord Harris of Greenwich mentioned to me, and it is an interesting point. If, under this new system that is proposed, a sentence of, say, two years' imprisonment 1041 is passed, and the Court of Appeal say that in their view the proper sentence would have been six years' imprisonment, and the man still serves two years' imprisonment, what view does the Parole Board take in particular of the advisory comments of the Court of Appeal in those circumstances?
Finally, I should like to make a comment about Clause 23, dealing with time limits. I cannot oppose it and I do not oppose it. But I am bound to confess that I am somewhat lukewarm about it. By imposing time limits, one can always get one case on earlier by the simple expedient of standing out another case so that it comes on later. It does not seem to me that to impose time limits will in itself lead to any real solution of the problems that face the courts at this time. The problems can only be solved either by increasing the number of courts—and I accept that there are resource implications about that—or by reducing the amount of work, and particularly by reducing the amount of work at the Crown Courts—I hasten to say, not by adopting the proposals that are sometimes put forward for the elimination of the right of trial by jury in certain cases. That would be a great mistake and would be very strongly resisted by many of us in your Lordships' House.
However, I believe that there are ways in which summary trial can be encouraged and particularly, of course—and the noble Lord, Lord Elton, will remember this well because we had many debates about it—by the widespread adoption of Section 48 of the Criminal Law Act 1977, so that before a magistrates' court hearing the defence knows the prosecution case in advance. The noble Lord will be aware that there have been experiments in, I think, Newcastle which appear to show that, where that system is being tried, then first, more defendants are pleading guilty at the magistrates' court than previously pleaded guilty—which is an enormous saving in time and expense—and, secondly, more defendants are electing to be tried summarily rather than to go for trial in the Crown Courts.
Therefore, I hope that today, when the noble Lord comes to deal with the question of time limits, he will realise that these are closely associated points and that there is at least one practicable method of reducing the pressure on the Crown Courts which would much assist the present proposals about time limits.
In concluding, I ought to say how grateful I am sure the whole of your Lordships' House is to the noble and learned Lord the Lord Chancellor and to the noble Viscount, Lord Whitelaw, for enabling the House to take this important Bill at this early stage in its history. It is an extremely important Bill. It merits very careful consideration, and I hope that your Lordships will agree that from time to time there will also be scope for considerable improvement.
§ 5.15 p.m
§ Lord Diplock
My Lords, the increasing number of cases which are reaching the Law Lords in their judicial capacity has made me reluctantly impose upon myself a rigid restraint on speaking in the Chamber, even upon lawyers' law, where the long experience of Law Lords of the administration of justice may assist the House in its deliberations. I 1042 believe that the present Bill is so far removed from partisan emotion that I can make an exception to the restraint that I have imposed upon myself.
On this Second Reading I propose to restrict myself to one point only. I shall confine my remarks to that part of the Bill which provides for the separation of responsibility for prosecution from the responsibility for detection, investigation of a crime and arrest. To that separation I, and I think perhaps all of us who have experience of the law, give a warm welcome. A wise decision has been taken to that effect. But once that wise decision has been taken, it leaves a choice between a central, monolithic, bureaucratic prosecution service, having no local accountability, and a regional service corresponding with the police area which it serves and which of course must work in the closest collaboration with the police force.
Part I of the Bill in its present form opts lock, stock and barrel for the former, the monolithic service. If I were construing the Bill, I would say that the reference in Clause 1(4), as it stands at present, to a "Crown prosecutor" is meaningless window-dressing because, after mentioning Crown prosecutors, it gives them no functions which are not equally the functions of every Crown prosecutor in the central service. At the Committee stage I shall ask the Government to think again before rejecting the carefully reasoned and researched advice which was given with only one dissentient voice by the Philips Commission. I shall not seek to repeat or enlarge upon the reasonings in Chapter 7 of their report which led them to that conclusion. But it might interest the House if I were to add a footnote, or perhaps, chronologically, I should say a preface, to the Royal Commission's report.
For some time past—more than 20 years now—we have been running at about three-year intervals what we call Anglo-American legal exchanges in which we consider some aspect of procedure of how we deal with particular classes of case. In 1977 the subject matter of our exchange was that of criminal trial procedure.
What happens is that an American team headed—as it has been recently—by the Chief Justice of the Supreme Court of the United States (and I, until recently, have been the leader of the English team), comes over here for two weeks to see exactly how we perform the task from beginning to end. Then in return we pay a similar visit to the United States, and, as a result, we hope to learn from one another some feature or other which we can adopt or, more obviously, adapt because our systems are different, which would make our system more effective than it is.
I hope I am not discourteous to our American colleagues when I say that in criminal law the result of our exchange was that we did not think that there was much in it that was better done than in our own. But there was one important exception, and that exception was the separation of responsibilities between the district attorney and the police so far as decisions to prosecute and the conduct of prosecution were concerned. When I use the expression "district attorney" that shows the local character of the work that the district attorney does.
Our studies on the spot showed the absolutely essential character of the liaison—and instant liaison—between the district attorney's office and the 1043 police authority. As a result when we returned—and the English team consisted entirely of lawyers—we made basically two recommendations to the Lord Chancellor. First, we recommended the separation of the responsibility for prosecutions from that of the responsibility of the police; and, secondly, we recommended strongly that it should not be a central service, but should be a local service.
The memorandum in which we made this recommendation was a short one. It did not elaborate upon our reasons for doing so. But it did, so far as I can recall, draw attention to the disparate regions in England and Wales, and call for variation in policy as between warning, to apply summarily, or to proceed upon indictment.
We regarded—and I still do, and I know that I can speak for my noble and learned friend Lord Scarman in this—local accountability as an essential feature of a proper prosecution service. No doubt one can leave with the Director of Public Prosecutions the right to take over cases. One can make the appointment of the local prosecutor an appointment by him after consultation with the local authorities. One can make provisions for reporting so that there do not arise unjustifiable differences in policy between one region and another.
As for the nature of the body to which local accountability should be rendered, there is plenty of discussion in the commission's report as to the various possibilities open there. Those details are for consideration of the Committee at the Committee stage. However. I would finish by once more asking the Government to think again as to the choice between central and regional responsibility for the prosecution process.
I fear that owing to the interruption which has taken place I shall not be able to stay longer to listen to the end of this debate, as I have a commitment which I cannot avoid, but my noble and learned friend Lord Scarman, who is at one with me in what I have been saying, will be here. If any questions are sought to be put, he will indeed be more competent than I to answer them.
§ 5.28 p.m.
§ Baroness Macleod of Borve
My Lords, it is always a great privilege to follow the noble and learned Lord, Lord Diplock. I think that it is the first time that I have had this privilege. I can only assume that I was put in this place on the list between the noble and learned Lords who are speaking this afternoon, on the assumption that your Lordships would all be out at tea. But, as the noble and learned Lord, Lord Diplock, has said, things have gone slightly awry today and I find myself speaking with other noble Lords in their places.
I should like to start by thanking my noble friend Lord Elton for his lucid and eloquent description of this important Bill. The Bill has taken a long time to arrive in this, or the other, House. It started with the recommendations of the noble Lord, Lord Wigoder, 14 years ago, as he has told us, and went on to the Royal Commission on Criminal Proceedings, which started in 1978 and reported in 1981.
1044 This is a big and important Bill. The police, to my knowledge of 25 years of adjudicating locally, have had a difficult and onerous responsibility for the decisions as to whether to prosecute or not. Often they have been made in their own divisions where sometimes the decisions on whether or not to prosecute have been in respect of people who are known not only to the police, but to all the local inhabitants. Although I have never known a case when a decision was made incorrectly—that is, as far as I knew with the facts that I had before me—the task must have been invidious on many occasions. I have sometimes felt that the public have not always realised that the decisions were impartial. As we know, some members of the public have been worried about the variations that there have been thought to be (not, I feel, seen to be) in many parts of the country—variations on whether or not to prosecute.
These proposals mean that neither the police nor any local body will have a say in the decisions made on whether to prosecute. This is where I do not agree with the noble and learned Lord, I am afraid—I do not know how I dare—about local decisions. If we need to get uniformity of decision, then it must be led from the centre. I agree with the Government on that.
I take up the point that the noble and learned Lord, Lord Elwyn-Jones, made about the representation of juveniles, and the decisions to prosecute them. As he so rightly said, we in this country make a great play of juvenile courts, juvenile bureaux, juvenile attendance centres and juvenile detention centres. We are extremely worried that the future generation should not be submitted to court procedures if it is found that any other way of dealing with them would be practicable. I hope that my noble friend Lord Elton will be able to tell us that some of the prosecuting members will be specifically trained in juvenile court work. I assure all noble Lords—I expect they have more wisdom than I have—that having had 24 years working on juvenile crime I can say that it is so different from adult crime.
I should like to know from my noble friend whether, when the staff are transferred either from local authorities or police authorities, their pay will be the same as that of members of the board that they will be joining. Then, I think from what the Minister has said that this will come out in the ensuing White Paper, but I should also like to know whether the boundaries will be county boundaries, which they have been up to now, and whether the Director will control the work centrally or whether it will be diversified via the county boundaries.
I do not think this is the time for me to go into Clause 22. I do not think I agree with it any more than any other speaker; but I should like to pass on to and welcome Clause 23, which proposes a maximum period for the prosecution to complete the stages of the preliminary hearings in courts. I do not know a great deal about the 110 days in Scotland, but it seems to be working well and it might be a guideline to us south of the Border. It is so important, as I am sure your Lordships will agree, that reasonable speed should be the target in the interests of the defendants and the witnesses. We all know what memories are like.
1045 I need to make only one more point, and that concerns manpower. We are told that 600 police officers are likely to be released. That I welcome wholeheartedly, but I am certain that the service will need a far greater number—I hesitate to say this, but I imagine it is so—of trained solicitors and barristers, apart from their backup services. It is obvious that many people will need to be recruited. It will be very important, in view of Clause 23, that this service should not be understaffed, otherwise the machinery will clog up as it has been doing in the past.
This is an important Bill which I hope will be seen to be fairer by all concerned: not only those who may be apprehended and may come before the courts, but by the public at large. I wish it well.
§ 5.35 p.m.
§ Lord Denning
My Lords, the noble Baroness, Lady Macleod of Borve, need not be unduly modest. This is a Bill which concerns everyone, and it is a concern on which the noble Baroness—a magistrate, I believe, too—has a great contribution to make, as she has made.
On the central proposition that there should be a division between the investigatory process (which is to be conducted by the police) and the prosecution (which is to be conducted by a solicitor with training looking at it impartially), there is no doubt whatever that the Royal Commission was right and the Bill is right in saying that there should be a separation. We should not have 600 police, superintendents or whatever, spending nearly all their time prosecuting in the magistrates' courts. They should be used on other duties; and their task of prosecuting—advising, if you please—on the merits of a case, and so forth, should be taken over by lawyers, legally qualified solicitors. That is the central recommendation of the Royal Commission, which I am sure is welcomed everywhere.
But there are hesitations when they say it is to be a national prosecution service. It is to be centrally directed, and it is said we should do away with all these local connections. Dear, dear: what a change in history! For the last 600 years the administration of justice and the prosecution of offenders has been county-wise, shire by shire, through the counties of England. Six hundred years ago, when the magistrates were appointed, they were three or four of the good and worthy people of the county. When the Grand Jury was summoned under the High Sheriff of the county, it had to consider whether there was a true bill or not. When someone was tried, he was tried by his own countrymen. Your Lordships will remember—perhaps you will not—that when a man was put up to plead and he pleaded, "Not guilty", the clerk said to him, "Culprit, how will you be tried?" His answer was, "By God and my country"—"my country" meaning my county. When putting the charge, the clerk would say to the jury, "To this charge he has pleaded 'Not guilty' and has put himself upon his country, which country you are"—the jurors of that county.
From those days to my younger days there were the magistrates dealing with the petty sessions and the more serious cases going to Quarter Sessions. Quarter Sessions were essentially a county matter. I was 1046 chairman of Quarter Sessions and had sitting with me magistrates of the county. Quarter Sessions were essentially locally-based within the county. How well they did their work, and with what confidence!
I do not like the drift towards the centre which was shown by the Courts Act; whereas we have no longer a country man as chairmen of Quarter Sessions or as magistrates. We have recorders going in and sitting, recorders with no connection at all with the county. I do not like that drift away and I hope that we shall not go any further. I merely say that to show that our organisation of the administration of justice and the prosecution of offenders has been country-wise, shire-wise, all but the area covered by the county police, and so on.
Is that all to be altered? The Royal Commission have gone into it. They have said that legal enforcement does not exist in a vacuum, that it must be influenced by the constraints and pressures in the environment in which it takes place. I can tell your Lordships that a Hampshire jury might decide very differently from what a Cornish jury would decide—and I have been on those circuits—and, in particular, from what a Welsh jury would decide. In other words, the administration of justice must not be national; it must not be central. And here I come to a very important point. The police authority which is carried on before the chief constable is absolutely independent of central government—and so it should be.
I venture to say, and I believe that it. is usually taken as correct, what I said in 1968 about the role of the chief constable in these matters being independent of central government. I said in the Blackburn case in 1968:I hold it to be the duty of the Commissioner of Police of the Metropolis as it is of every chief constable to enforce the law of the land. He must take steps so as to post his men that the criminals may be detected and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted and. if need be, bring the prosecution"—if it is decided to be brought—but in all these things he is not the servant of anyone save of the law itself. No Minister of the Crown can tell him that he must or must not keep observation on this place or that; or that he must or must not prosecute this man or that. Nor can any police authority tell him so The responsibility for law enforcement lies on him. He is to account to the law and to the law alone".This is important. The police must be independent of the Executive. They must not be directed by Ministers of the Crown when to prosecute or when not to prosecute. We should most certainly be coming into a most dangerous situation. I do not say that it happened, but I can tell you of the case of Gouriet. Your Lordships may remember that a trade union then said that the mail was not to be sent from England to South Africa by any of the men because the union opposed the doctrine of apartheid. That was a criminal offence; it was acknowledged to be a criminal offence to stop the mail.
The Attorney-General did nothing. Lord Wilberforce said that he regretted that the Attorney-General had not thought fit to say something, to say that it was unlawful to stop the mail. He did nothing. It is most important that no Minister of the Crown, of the Government, should have the decision not to prosecute in particular cases in which he may disagree. We will get into much danger on that attitude.
§ Lord Elwyn-Jones
If my Lords, if the noble and learned Lord will forgive me, did not the House of Lords overrule the decision of the Court of Appeal in that matter?
§ Lord Denning
My Lords, I did not refer to the decision of the Court of Appeal because that was on another point. We in the Court of Appeal made an injunction to stop the trade union carrying out those activities; and it succeeded. They did not stop the mail. We did what was right. The House of Lords said that we ought never to have done it. But they were wrong. My point on this particular case is that Lord Wilberforce in the House of Lords (sitting in its judicial capacity) said that he regretted that someone in authority like the Attorney-General had not declared that it was unlawful. That is the very point that I was making. The decision must not be left in this country to the Minister of the Crown. The decision must be independent.
What better than our present system in most, not all, of the counties? We have our county prosecuting solicitors, and they are independent. The police pass their investigations on to them. They give their advice, they prosecute and they conduct the whole matter on a county basis, shire by shire, and they have their organisation complete, as it is, to carry on this service which is recommended; namely, the prosecution service, which should be separate from the investigative service. Of course, there has got to be a great deal of liaison between the police, the investigators and the solicitors who are prosecuting. That must be so in the nature of the case. But that goes on all the time. Surely that is the best machinery. Surely it is best to keep that local machinery going and to build upon that in this new system. Let there be some central oversight if you please that everything is going properly—something such as reporting to them, and so on. That can be provided for. But, otherwise, do not make it national. The Royal Commission with only one exception—and they are a very valued body; and, if one reads the report, it is absolutely first rate—have said that a national service was neither necessary nor desirable. I would support, if I may, the Royal Commission on that point.
That is one point of principle. I would mention the other point: the reference of a sentence. After a man has been sentenced by the court, the prosecution can refer to the Court of Appeal and say, "That ought to have been more". I would regret any such thing. It is fundamental in our constitution that there is no appeal from a man who is acquitted, there is no appeal by the prosecution saying that the sentence is too low. That is absolutely fundamental in our whole thinking. This is just a way of getting round it.
§ Lord Denning
Well, my Lords, perhaps not a way of getting round it; because they say it is not to be an appeal; it is just an expression of opinion. I think of a case that I tried at the Gloucester Assizes years ago when there was capital punishment. I remember it well. An Army officer was back on his leave and his wife nagged him terribly. He took out his revolver and shot her dead, pregnant as she was. He was tried before 1048 me for murder. I had to tell the jury that words were not sufficient provocation to reduce the charge from murder to manslaughter. Nevertheless, the jury did not want capital punishment. They found him guilty of manslaughter. No one can quarrel about that; there was no appeal there.
But what was I to do? My Lords, you might be surprised; the media might be surprised. I had heard all the case, I had heard of all the aggravation and everything about it. I sentenced him to two years; and the people in the gallery applauded. Was I right or wrong? I had heard all the case; I had heard all the circumstances. I imagine that the media, if they had got hold of it, would have said, "Two years is far too short! It ought to have been 10 at the least". And the Court of Appeal might have said that it ought to have been 10 years at the least if there had been a reference to them. Is that the right way to deal with a case? If these matters are referred to the Court of Appeal, if the prosecution want to go to the Court of Appeal and say, "That man ought to have had 10 years: he ought not to have had two," the Bill suggests that he can have counsel if he likes to say that it was quite right that he should only have had two. What man is going to worry about a counsel to represent him? He is not going to have his sentence increased in any way. So there may be no argument on behalf of the man, no argument on behalf of the judge: the argument is by the prosecution, saying that this ought to have been more. Is it not really only a sop to the media? The media, when they criticise sentences, do not know all the details. They will say, "This man only got so much for doing such-and-such", but when the media criticise like that they do not know all the circumstancs of the case.
I suggest that we leave the law as it is. When the judge has given the sentence as he thinks right in his discretion, it should be left there. The accused man can appeal if he thinks the sentence is too severe, but the prosecution should not be allowed either to appeal or indirectly to have the case referred to the Court of Appeal to see whether or not the sentence is too low. My Lords, these are just thoughts as this Bill goes forward. There will certainly be important points to be considered on Committee stage.
§ 5.52 p.m.
§ Lord Simon of Glaisdale
My Lords, the central feature of this important Bill is the separation of the prosecution process from the investigatory processes of the police. That has received universal approbation during your Lordships' debate, and if I may say so I entirely adhere to that view. The difference of opinion that has developed is whether the new prosecution should be a national or a local service in the sense of whether responsibility for the decision should be made locally or to the central government of this country and ultimately to Parliament. I differ, with very great diffidence, from what is said by my noble and learned friends. Lord Diplock, Lord Denning and Lord Elwyn-Jones. But on this matter I found myself entirely convinced by the Minister, by the noble Lord, Lord Wigoder, and by the noble Baroness. Shortly, I think that the reason why ultimate responsibility is better laid at the centre is because there is less likely to be political interference with the prosecuting decision.
1049 My noble and learned friend Lord Denning, with great force and historical learning, laid before your Lordships the courts of the county, quarter sessions and the Grand Jury. That is all very fine, but they have all gone. They were found not to fit in with our modern system of society; and to perpetuate them into a local responsibility for prosecutions seems to me to be an utterly illogical as well as a retrograde step.
My noble and learned friend Lord Elwyn-Jones indicated that there are in any case a number of decisions as to prosecution and the like that have to be made or ought to be made centrally with responsibility to Parliament. An example I think he had in mind is a case where there are liable to be diplomatic repercussions. But it goes beyond that. Perhaps I might mention three examples to your Lordships. During the 1945 Government, Sir Hartley Shawcross was Attorney-General and at that time various wartime regulations about dock labour were still in continuance and there was mass defiance of those regulations. The Attorney-General took the responsibility—as I think rightly—that it would be an impossible task politically and a most undesirable course to prosecute all the persons concerned, with possibly the whole of the labour movement mobilised behind them. That was essentially a decision that had to be made by an officer of the Crown responsible to Parliament. Of course as always, since the Campbell case in 1924, the decision is taken by the Attorney-General of the time impartially, without regard to party considerations. Nevertheless, it rightly lay with him.
The second case was in my own time as a law officer. It concerned, as your Lordships may remember, a Russian woman athlete who was part of the team visiting this country. It may have been when my noble and learned friend was Attorney-General, but I think not. The Russian lady was attracted by some goods in a shop and she was charged with shoplifting. The Attorney-General, having taken advice—but advice only as to the diplomatic consequences—decided that the prosecution should be withdrawn.
Both the cases that I have mentioned might not have been in London: for example, the dock labour might have been in one of the provincial docks and the alleged shoplifter might, for instance, have been in Lewis's in Manchester. Nevertheless, the decision had to be made in my view—and I think this is the generally accepted view—by the Attorney-General, who was accountable to Parliament.
The third case was one where I, as Solicitor-General, had to defend an action by my Attorney-General, Sir Reginald Manningham-Buller, and to intervene in the case of the flower sellers outside the cemetery in Manchester. They had the splendid idea that it was cheaper to be fined for persistently flouting the by-laws of Manchester than to give up their lucrative sale of flowers outside the funeral parlour. The only step that could be taken was taken by the Attorney-General. That was to obtain an injunction. Of course, that was quite a serious intervention in the judicial process, the prosecution process. It was questioned, and I had to defend it—and I must say without any particular difficulty.
1050 Those three cases—and one could multiply them greatly—were ones which, in my respectful submission to your Lordships, had to be made centrally and presuppose a national prosecution service. That does not mean that you must have a bureaucratic mass. Much will depend on the terms of the White Paper which the noble Lord, in his admirable speech, promised us. That will be scrutinised carefully to see that the necessity for a national prosecution service does not involve us in over-centralisation and a massive bureaucracy.
There is only one other point that I want to make about that matter. In one of the briefs with which your Lordships have been provided it states that a national prosecution service will be the thin end of the wedge towards a national police force. I cannot see that that follows. In any case, your Lordships will remember the pungent observation by Lord Hugh Cecil, that the British constitution is full of the thin ends of wedges that the good sense of the community refrains from driving home.
The only other matter in Part I to which I wish to refer is Clause 6, which preserves the right of private prosecution. I entirely agree with what was said by the noble Lord, Lord Wigoder, and by the noble Lord, Lord Renton, in his intervention. The right of private prosecution is an important element in the rule of law. Every citizen should be entitled to say: "You, the authorities of bureaucracy, the Ministers, may say that there are social or political grounds whereby one should not prosecute. I, who claim to live under the rule of law, proclaim my right to set the law in motion". I think that the Bill is entirely right to preserve that important personal liberty.
My only question on it is the considerable erosion that has taken place in that fundamental principle. I have here the Prosecution of Offences Regulations 1978, which give the various exceptions where the consent of the Attorney-General, of the Law Officers or of the Director is required. It is an absolute hotch-potch. When, very long ago, I was a Home Office Minister I asked the officials to explain to me the animating principle, and they were quite incapable of doing so. When I joined the Law Officers' department, I again asked the same question there, but with no more result. Since then, the only guide that I have been able to get is that each curtailment of private right to prosecution, or each attempt to do so, seems to have been based on a desire to inhibit Mrs. Whitehouse from taking action in relation to any offence which might disturb her. But I would ask the noble Lord to tell us, if he can, on what principle the right of private prosecution is now eroded; and your Lordships will probably wish to be satisfied, before passing from Clause 6, that the whole scheme is rationalised and not left as it is as just a hotch-potch.
I desire to say only this further. I entirely share the concern that has been expressed about Clause 22. Everything that I might have said has been very much better said than I could say it, but I have two main objections. The first is subsidiary in that, as has been pointed out, it is contrary to the whole tradition of our legal system that the prosecution should concern itself at all with the penal consequences of conviction. I say that it is subsidiary because I think we should be prepared to look again at anything in our penal system 1051 which may not make sense. There are other systems where the prosecutor demands the sentence that he thinks right and the defending advocate then claims the lesser sentence, such as would be sustained today by a plea of mitigation in this country. It seems to me that we ought to be prepared to look at that. It seems to me very much preferable to what is embodied in this Bill.
The precedent for Clause 22 is, of course, the power of the Attorney General to refer to the Court of Appeal a ruling of law which he deems to be erroneous, when that ruling is masked by an acquittal. But that does not seem to me to be at all on all fours. A point of law is essentially a justiciable issue, and it is entirely right that the Court of Appeal should be able to declare the law. But for the reasons put forward, especially by my noble and learned friend Lord Denning but by practically almost every other noble Lord who has touched on this issue, it seems to me extremely dangerous even to let ourselves appear to allow a prosecution to be appealing on the adequacy of a sentence. So I hope that the Government will consider that provision very carefully in the light of the, I think, universal disapprobation that it has received from those of your Lordships who have dealt with it. Apan from that, I wish the Bill well.
§ 6.7 p.m.
§ Lord Hutchinson of Lullington
My Lords, as a mere barrister it is somewhat daunting to follow no less than four Law Lords out of seven previous speakers, but as most of them have disagreed with each other I am confident that in what I have to say I shall find support from one or other. In July 1982, when we last debated this topic, I leaned towards the concept of the local accountability of the prosecution service. I believed, as I still do, in the virtues of local justice. I was, and still am, resistant to this Government's passion for centralisation of power, and I had seen the acceptance of the Beeching report lead to the creation of centralised Crown Court complexes with the most unhappy results.
But now I am convinced—somewhat reluctantly convinced—by the arguments in the working party's paper before this Bill was introduced, and now I must support the central purpose of this Bill of an intergrated Crown prosecution service. I do so because I believe that the essential independence of the Crown prosecutor can be achieved under the Bill's provisions, and I feel that now, in this age, the manifest independence of the prosecutor and his freedom from local influence must be seen to obtain. If I may say so with the greatest of respect to the noble and learned Lord, Lord Denning, the situation now is very different from what it was when he practised on the circuit. It may not be the case in Hampshire but it certainly is the case in some parts of the country that there is a far, far greater tendencey to exert political interference than there ever used to be.
I support the Bill, too, because I believe that consistent, as opposed to uniform, policies, high professional standards and ultimate accountability to Parliament can be achieved in this service and because an established career structure could guarantee a high degree of professionalism and efficiency. That the 1052 prosecutor will no longer be the client of the chief constable and that the moral views of the local chief constable will no longer determine local prosecution policy are undoubtedly notable achievements.
Therefore, I support the Bill in principle, but I must confess that I do so with the greatest anxiety. Great dangers still lie ahead. There are dangers, already referred to, inherent in the creation of a new national bureaucracy covering a larger spread of population and a heavier crime load than in any equivalent body in any democracy in the world: approximately 2 million cases in the magistrates' courts, over 80,000 cases in the Crown Courts in any year. The Bill creates a department of central Government which will have ultimate control over the recruitment, training and promotion of every prosecuting officer in the land, each one responsible ultimately to the Director of Public Prosecutions, and from him to a Government Minister.
The Director's office is not renowned for its efficiency and its breadth of view, and that of the Solicitor to the Metropolitan Police is not renowned for its sturdy independence. The new service therefore must be genuinely new, not just the old service dressed up in wolfs clothing. It will work only if the Crown prosecutor is truly independent: if there is maximum delegation of decision-making, if the Attorney-General is content to do no more than lay down guidelines and the Director to adopt only a supervisory and arm's length role. I, too, am very glad to note the Minister's view, that the Government support entirely the recommendation of the Benson Royal Commission that the exclusive rights of audience in Crown Courts should remain with the independent Bar.
When quarter sessions and assizes were abolished and a national system of Crown Courts established in the name of Beeching efficiency, I remember thinking that if administration goes to the Lord Chancellor's office, not to the Home Office, all will be well. But it has not so turned out. Civil servants, running the courts' administration, have not worked, ever, at the coalface, if I may so call it. They have no deep loyalty to the complex of courts to which they are only temporarily attached. They do not have the "feel" of how to knit together smoothly the needs of the public, jurymen, witnesses, lawyers and the police. When I was the humble recorder of a city of 80,000 souls—what, I am sure, the noble and learned Lord, Lord Denning, would now call a real recorder—my clerk of the peace was a local solicitor. He ran the administration of that court for the 10 years that I was there with his own staff and on a shoestring. In five working days at those quarter sessions, in a single court we used to get through as much as the new complex, 20 miles away, now gets through in one court in five weeks. So there are dangers.
There are other dangers. Will this national service lead inexorably to the creation of a national police force, as mentioned by the noble and learned Lord, Lord Simon of Glaisdale? Will the management of this service fall inevitably into the hands of professional administrators? Will centralisation and apathy be the order of the day and, one day, will abuse be possible, should the political head of the service come from the hard Left or the hard Right?
1053 Lastly, I fear for the future of the independent Bar: that vital bulwark of our liberties to which my noble friend Lord Wigoder referred. With the administration of the courts and a centralised grip on the levels of legal aid firmly in the hands of the Lord Chancellor's office, with the prosecution service and the levels of remuneration in the hands of the Director of Public Prosecutions and the Attorney General, it is only a very short step to the creation of a public defender's office. That means the polarisation of the Bar and the end of its independence. With the Lord Chancellor, the Home Secretary and the Attorney General wielding these wide and overlapping powers, are we not now on course for the creation of a Ministry of Justice? The working of this Bill will, I submit, call for constant vigilance.
I welcome wholeheartedly Clause 23, enshrining an idea which has been repeatedly aired from these Benches, in particular by my noble friend Lord Donaldson of Kingsbridge. The mention of field trials and the £100,000 to be spent upon them raises ghosts of the field trials which are still progressing after 10 years in relation to the tape recording of interviews. I sincerely hope that these field trials will be somewhat shorter than those.
I am sad that under Clause 6 of the Bill the role of the private prosecutor is specifically preserved. I differ, I am afraid, from other noble Lords who have spoken on that subject. Surely the private prosecutor today is an anachronism and, furthermore, a nuisance. I say this having benefited greatly in my practice from the existence of Mrs. Whitehouse. Many a brief has come my way in order to meet the predatory activities of that lady.
I must also add that on no occasion did I fail to win the case. Whether the public interest was served by those long and deeply fiercely fought battles in the courts of law I do not know; but at the Bar, certainly, the existence of Mrs. Whitehouse is supported. However, I submit that the role of the private prosecutor is an anachronism. The Royal Commission had absolutely nothing good to say about it. The Royal Commission said that its main manifestation—that is, the retail store prosecution for shoplifting—should be abolished. Furthermore, the Royal Commission said that if it was not abolished, then there should have to be an application to the public prosecutor—and if he turned it down, an application to the magistrates. I am sad myself that here is another opportunity for proper reform sadly missed.
I should like to ask the Minister two questions. One is the same as that which my noble friend Lord Wigoder asked: what are the specified proceedings envisaged in Clause 3(2)(a)? And in respect of Clause 13, where fees are fixed by the Attorney-General, will there be the same right of appeal to the taxing master as obtains at present in relation to legal aid fees?
Finally, I come to Clause 22. In my view, this clause is unnecessary for the reasons which the noble and learned Lord, Lord Elwyn-Jones, has mentioned. It is divisive and is unworthy of a place in what otherwise is a welcome Bill. The tradition of the Bar of England and Wales has always proudly upheld the principle of prosecution neutrality. No prosecuting counsel may 1054 ever attempt to influence the court in relation to sentence. Prosecuting counsel has no public view of the appropriate sentence in the cases he conducts.
Under this clause, the Attorney-General—who is himself a member of the Bar, and indeed the leader of the Bar—is to be given the power to take sentences to the Court of Appeal on the basis that he thinks they are too lenient. In involving a member of the Bar who is a Government Minister in a partisan approach to the exercise of a judicial discretion in this way, I would submit that this clause would seem to sanction political pressure upon the judiciary.
Have the judges or indeed the Bar been consulted? I ask that question of the Minister because, as has already been mentioned, the bulletin of the Judicial Studies Board reports that not, as has been stated, one sentencing seminar but two, covering no fewer than 150 judge attendances, strongly condemned this idea.
Are we now to have Crown prosecutors reporting centrally, up to the Director of Public Prosecutions and then to the Attorney-General, on the appropriateness of sentences passed by judges in cases where they are concerned? Are judges perceived, on their records, to be lenient or out of line in regard to some centrally-operated tariff to be taken to court to be publicly rapped on their judicial knuckles? As has already been asked, will the judge be permitted to defend himself in the Court of Appeal? Certainly, no self-respecting defence counsel would go there to defend him. Or are there to be private, unpublished communications between the judge in question and the Court of Appeal?
To give this power is to invite pressure by the media and in Parliament upon the independence of the judges. Indignation will be stoked up in sex cases, in political cases, in industrial relations cases—and anonymity in those cases would be a farce. Do we really want the judges to be looking over their shoulders, ever fearful of passing a sentence shorter or less severe than that which the Lord Chief Justice or some senior Lord Justice of Appeal might consider appropriate?
There is no parallel whatever with the Attorney-General's power to refer matters of law to the Court of Appeal, for the law can be established and a judge can be shown to be wrong. There is no parallel either with the appeal by a defendant to the Court of Appeal to suggest that his sentence is too severe—because we must of course have that safeguard where the liberty of the subject is involved.
Sentencing is a matter of discretion and of judgment. The Minister referred to the question of setting a precedent. No sentence by an individual judge in an individual case can set a precedent. In the future, there will be, if I may say so, Dennings in the criminal courts; judges of robust independence, judges who have studied penal development and who are in touch with social development, and judges whose sentences may be more radical and more informed than those in the remote Court of Appeal. Judicial confrontation and dispute in civil matters, as we know, has been of great advantage to the development of the law—but in the criminal courts such confrontation would be totally unacceptable.
1055 The Home Secretary threw a sop to his political hard-liners and gravely injured the delicate and highly successful mechanism of parole. Here, if I may say so, he seeks to throw a further sop in the same direction—which will do equal damage to the equally delicate mechanism of the sentencing process. This clause should not remain a part of the Bill.
§ 6.27 p.m.
§ Baroness Faithfull
My Lords, like other Members of your Lordships' House, I support the establishment of a Crown prosecution service for England and Wales, but it is with sadness and regret that I find no mention is made in this Bill of special needs and special facilities for children and young persons—except for a passing reference in Clause 27. I am most grateful to the noble and learned Lord. Lord Ewlyn-Jones, and to my noble friend Lady Macleod, who has such long and distinguished service as a magistrate, for mentioning the special needs and position of children and young persons.
Like other Members of your Lordships' House, I feel that there is cause for concern over this matter. The objective of the Bill is that the independent prosecutor should proceed in all cases in which a successful prosecution is likely to succeed. This is out of line with the policy of Her Majesty's Government for prevention and diversion carried out by the Department of Health and Social Security and by the police—and, at local level, by social service departments and the police, assisted where practicable by education departments, probation, and youth services.
I ask my noble friend the Minister whether it would be wise either to introduce a figure similar to the reporter in the Scottish system for children's hearings—and I am delighted to see in his place the noble and learned Lord the Lord Advocate, because he will be able to put me right if I am mistaken about the Scottish system—or to defer the independent prosecutor in cases of children and young persons, until such time as Her Majesty's Government can remould the juvenile justice system or adapt the family court system.
I ask the indulgence of your Lordships' House in referring to the mounting climate of opinion throughout the country towards a change in the juvenile justice system. The basic principle behind this call for change lies in the belief that, so far as possible and practicable, children and young persons should be kept out of the penal system by constructive and positive preventive work. This is dependent on close liaison between the police, social services, education, probation and youth services. Many local authoities and police authorities have already formed a liaison group; notably Northamptonshire, Devon, and other local authorities. Such diversionary schemes have resulted in a higher rate of cautioning and fewer young people appearing before the courts. The second basic principle is to involve parents in court proceedings so that they are accorded a sense of responsibility and involvement for their children and young people.
This rising climate of opinion can be seen in four reports. There is the working party of the Association of County Councils. I shall not read out all those who 1056 have served on this notable working party. The chairman, Mrs. Phillips, is chairman of the Association of County Councils' social services committees. There were representatives from the Law Society, from the Magistrates' Association, the Justices Clerks' Society, the police, the probation, education and social services. In fact, there was a very wide range of people serving on that committee. There is also the production of a discussion document by the British Association of Social Workers. There has been a working group of the Association of Directors of Social Services and one from the Residential and Family Care Association. There is of course also the notable report of the House of Commons Select Committee on children in care. The chairman of that committee was Mrs. Renée Short.
Finally, there is a professional committee of both statutory and voluntary agencies called New Approaches to Juvenile Crime. The strange thing is that the conclusions and recommendations of all those reports calls for a change in the juvenile justice system; recommending the setting up of family courts to deal with all family matters, including the welfare aspect of juvenile offenders and the method and way by which they should be helped. The juvenile courts, it is suggested, should retain their criminal jurisdiction. It must be said that the thinking in England and Wales has been greatly influenced by the children's hearing system set up in Scotland following the recommendation made by the Kilbrandon report.
The committee, New Approaches to Juvenile Crime, commissioned a report called Juvenile Justice—the United Kingdom: Comparisons and Suggestions for Change. This report was written by Mrs. McCabe and Mrs. Treitel, both criminologists. In this report the Scottish system recognised the need for a type of person with knowledge of young people, known as the reporter, to deal with juveniles. The police refer such cases where children are alleged to have committed a crime both to the reporter and to the sheriffs chambers. In many instances, cases are handed back to the reporter, except in serious cases of robbery, arson, murder and rape. Such cases go to the sheriffs court.
When this was first instigated, fearing that perhaps there would be difficulties, the police referred all their cases to the procurator fiscal. Now, the majority of the cases go from the police to the reporter. The point I am making is that a special kind of person is needed to deal with juveniles. May I also say that, from the point of view of a central service or a local service, where juveniles are concerned I support a local service. Either we in England and Wales need to introduce a figure similar to the reporter, as in the Scottish system, or, as I said at the beginning, to defer the independent prosecutor in cases of children and young persons until such time as Her Majesty's Government can remould the juvenile court system or adopt the family court system.
§ 6.36 p.m.
§ Lord Elystan-Morgan
My Lords, I am sure that the noble Baroness, Lady Faithfull, will forgive me if I do not follow her on the extremely important issue that she has raised. May I say that I totally agree with her, 1057 as I do with my noble and learned friend Lord Elwyn-Jones, who raised the matter earlier. I am sure that the House will pay very considerable attention to the matters that have been raised when we reach the appropriate stage on this most important issue.
This is truly a non-political Bill. Therefore, if I have anything harsh or unkind to say to the Minister in the course of my address I am sure that he will accept it in a spirit wholly different from that in which such remarks are normally made. The campaign for an independent prosecution service is one that has been conducted with great assiduity and for a very long time by many distinguished persons and bodies. I am sure that the whole House wishes tonight to pay tribute to those who have associated themselves in what has been a very dedicated campaign. I think it right, too, that the Government should be congratulated on having taken action upon the Royal Commission's recommendations. The Government have acted within less than four years and I think that, on the whole, that is rather par for the course so far as the actions of governments on law reforms proposed by Royal Commissions are concerned.
We have had a full and extremely informative debate. The noble and learned Lord, Lord Diplock, referred to the decision to set up a prosecuting service as a wise decision. Indeed, that has been the refrain that has appeared in the speech of every Member of this House who has contributed to this debate. The need for a truly independent prosecution service is an unanswerable case. I am sure that in this House and, I trust, in another place it will never be suggested that the case for it is in any way based upon any lack of integrity on the part of the police, or lack of competence on the part of police forces. It reflects adversely in no way whatsoever upon them.
Secondly, in my submission, there is not the slightest danger that if this broad proposal is carried it will bring about any diminution in the efficiency of the police. It is well worth everybody who is interested in the matter looking carefully at the Royal Commission evidence. The commission has studied the matter with great care and considerable balance. It looked very carefully at the situation in Scotland, California and Ontario, and came to the conclusion that there was not the slightest evidence that there would be any falling off in efficiency were such a system to be brought about.
The Royal Commission then reminded itself that, after all, those places had enjoyed such a system for a very long time, and so it looked at places where the system had been brought in over the past decade or two. It looked at Northern Ireland and found that since 1972 there was certainly no evidence of that there. But it fairly said that that should not be regarded as a general precedent because of the miserable condition of that territory. It then looked at the situation in British Columbia, which has had the system for the past 10 years. It examined it in detail. Again it was seen that no substantial difficulty was faced by the police in initiating such a system.
Progress towards a prosecution service has not exactly been made in indecent haste over the years. It took the Metropolitan Police just over 100 years before the first prosecution branch was established in 1058 1935. The Roche Committee on justices' clerks in 1944 strongly recommended that there should be a prosecution service. That was even more strongly enunciated in the 1962 Royal Commission report on the police. There are strong and compelling grounds for having one.
The aims are ones that we all share: first, that there should be greater fairness; secondly, that there should be greater efficiency, and thirdly, that justice should manifestly be seen to be done. With regard to fairness, it is essential that cases which are not really justified should never begin their course of being brought before the courts.
With regard to efficiency, in, I believe, 1980, 43 per cent. of acquittals in the Crown Court were by direction of the learned judge. That statistic is not exactly what it seems. It does not reflect as badly on prosecuting authorities as it would seem. Very often only in the course of a trial will it be seen that the prosecution's star witness, to use the slang of the courts, is going bent. Certain witnesses who were up to the very last minute expected to present themselves at court may for some reason—sometimes there is a perfectly proper reason such as illness or old age—not be there. Again, there may be matters which simply could not have been foreseen. But in many cases a reading of the papers by a person who is able to bring a fresh and independent mind to the situation will make it clear beyond peradventure that the case should never have been proceeded with. There will be a great saving not only in money but, far more importantly, in serving the interests of justice.
Thirdly, the question of justice being seen to be done, in my submission, is closely linked with the question of consistency. Under many headings of criminal prosecution there is little consistency in the policies of one chief constable and another in the 43 police authorities of England and Wales. It was said in the 15th century of the Lord Chancellor that equity varied as did the length of his foot. One could almost say that in certain areas—prosecutions in relation to obscene publications perhaps form the most notorious category—the situation varied as capriciously as did the length or breadth of the chief constable's foot.
Ideally and logically it would be right to draw the line between the police and the prosecutor immediately before a charge is laid, but I appreciate that that is something which many people have thought about deeply. My noble and learned friend Lord Elwyn-Jones says that he has had doubts about that. Indeed, speaking personally, I think that that is the situation of many of us. Nevertheless, it seems to me that if an independant prosecutor is to be brought in at a much earlier stage than envisaged by the Bill, he will be part of the investigative process. His function will be running parallel with that of the police. In itself that parallel factor would compromise the independence that he should otherwise enjoy. In my submission it would be totally self-defeating. It is a point that is put forward succinctly at paragraph 7.10 of the Royal Commission report.
May I make one point in relation to private prosecutions? I believe with my noble and learned friend Lord Elwyn-Jones in his second thoughts on the matter, that there is a justification for maintaining 1059 ordinary private prosecutions. As we have heard, they represent about only 1 per cent. of the totality of prosecutions. They are confined almost to two exclusive categories: those shops and stores which for some reason wish to bring their own prosecutions for shoplifting rather than have the police do it; and quarrels between neighbours where is is felt that it would not be right for a public service to bring the prosecution.
But that does not dispose of the exclusions to the Bill. As we know, many other agencies prosecute—the Inland Revenue, the trades description departments, and so on. On reading the Royal Commission report I was astonished to find that about one-quarter of all crime committed by persons over the age of 17 is dealt with by way of such prosecutions. A substantial area of crime—I would calculate probably of the order of 18 per cent. to 20 per cent.—will not be covered by the provisions of the Bill. That is something which the House may wish to reflect on deeply at a later stage.
Clause 6, it seems to me, is strangely worded. There may well be a reason for that. It does not refer to the various public agencies as such. It says:Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings".Presumably the term "person" there includes a vast galaxy of bodies which at the moment enjoy and exercise the right of prosecution.
May I now come to what I regard as the real issue in relation to prosecutions. The question that will be paramount in people's minds years hence when they look back at the fortunes of this Bill in Parliament will be whether Parliament has chosen the right option. I am not at all sure that the options were quite as clear cut as they are set forward either in the Royal Commission's Report or indeed in the White Paper. They are three: totally local; totally national or a hybrid between the local and the national. I suspect that various compromises which do not fit exactly into any one of those fairly narrow channels are perfectly possible and indeed probably desirable.
With regard to the option that was chosen by the Government, I very much regret the fact that they chose this particular one. It seemed to me to be the weakest of all three. Indeed, as my noble and learned friend Lord Elwyn-Jones has already pointed out, in their report they completely demolish the case for it. This House should always remember that there is no precedent for a national prosecution service in any country that is under a common law system.
The noble and learned Lord, Lord Simon, raises some very proper and real issues in relation to the problem of certain matters—and I am sure that the House totally agrees with him—of a delicate but nevertheless public nature, involving some very wide and complicated issues which should only be decided by the Director of Public Prosecutions or the Attorney-General. However, with the greatest respect to the noble and learned Lord, I think that is only one side of the coin.
First, if it be that the House says, very well, it accepts those cases and they are cases which could only be decided at that level—accepting that they must be decided, so to speak, at a London level—then does it 1060 follow by any logic that all cases that are decidable either by the Director of Public Prosecutions or by the Attorney-General should necessarily be decided in the same way? In my submission, it certainly does not follow.
I understand from the research of the Royal Commission—and certainly not from my own knowledge or researches—that there are will over 100 cases in our statutes where such powers are exercisable. In my submission, in many, many cases it would be right and proper that that decision should be made at a local level. In other cases, of course, such as the instances cited by the noble and learned Lord, it will be at London level. It is not beyond the wit of this House or, surely, of the other place to write into the Bill a provision that there should be full consultation or indeed—probably more proper—that there should be a complete transfer of the authority to decide to the Director of Public Prosecutions in that particular case. I urge the House not to think that it is a choice between total London control and total local control as far as such decisions are concerned.
In my submission, the effect of the choice made by the Government is totally to destroy the independence of the Crown prosecutor locally. On the one hand they bestow upon him a very considerable independence—he is independent of the chief constable. At least that is the clear intention. I think that that intention could be greatly frustrated if they make the area, the terrain, the bailiwick of the Crown prosecutor co-terminous with that of the police authority. Have those two boundaries coincide and there is then the certainty that you bring those two bodies closer and closer together. The closer they are together in that physical sense, the less independent will one be of the other. But, even accepting that there is independence from the chief constable, what value has that independence if, at the end of the day, there is greater dependence upon the Director of Public Prosecutions? To use the language of the Royal Commission and the White Paper, the Crown prosecutor would be in direct line management in relation to the Director of Public Prosecutions.
There is very great disquiet felt and expressed by the Association of Prosecuting Solicitors for England and Wales. I have had the opportunity of discussing the matter with their President, Mr. Timmons. It is clear that they feel totally shattered about the decision made by the Government in this regard. They were assured that their status would be elevated, that their independence would be preserved. They envisaged that they would be on a par with procurators fiscal in Scotland but now they see their independence totally destroyed by the Bill as it now stands.
In the few more minutes that I intend to take of your Lordships' time—and I am sorry to have spoken for so long—may I now suggest how the Government might consider how this could be done without destroying in any way any of the main purposes of the Bill? First I think there should be specific authority in the Bill for there to be an office of Crown prosecutor at a local level; not something that is left to the whim or caprice of the Director of Public Prosecutions of the day but something that is a legal necessity.
Secondly,—and I have already touched upon this—I suggest that the areas should be different from, and in 1061 practice of course larger than, the police areas themselves. I envisage that it would not be impractical to think in terms of an area equivalent to two or three police areas. However, again, different circumstances will apply to different parts of England and Wales.
Thirdly, I suggest that the Crown prosecutor should be housed in buildings that are totally separate from police premises. In many cases now they share the same premises. That is fatal to any prospect of independence. Therefore, if no calculation has been made of the capital cost of such severance, I think it is high time that it should be done.
Fourthly, there should be protection given against any pressure in relation to dismissal that can be brought at local level. I shudder from quoting verses, as it were, in the presence of the noble and learned Lord the Lord Advocate, but I understand that the procurator fiscal in Scotland is protected by the fact that he cannot be dismissed without the decision of high judicial officers. Would it not be right to give the Crown prosecutor in England and Wales the same right, protected, let us say, by the Lord Chancellor? Would it not be right to aim for a status for the Crown prosecutor roughly comparable with that of a circuit judge? After all, the authority that one bestows upon him is broadly comparable—although of course very different in many respects.
Lastly, may I make this suggestion? Is it not possible to set up an inspectorate that would provide an insulative layer of independence between the Director of Public Prosecutions, at the very apex of the pyramid, and the Crown prosecutors? In my days as a very junior Minister at the Home Office I was greatly impressed by the way in which the police inspectorate worked. I thought of it first, in all naivety and innocence, as being a link between the Home Office and the police and chief constables. It was not. It really was something that broke that link. I believe that such an inspectorate in relation to Crown prosecutors could achieve the same. The White Paper says that one could set up such an inspectorate for a sum between £260,000 and £340,000 per annum.
There are many other matters that I simply cannot refer to, but perhaps I may just mention Clause 22. That is a clause that has not had one good word spoken about it except by the noble Lord the Minister. As my noble and learned friend has said, the present Lord Chief Justice has, more than any of his predecessors, gone out of his way to lay down guidelines of policy in relation to sentencing in the context of many headings of various offences.
Secondly, the Judicial Studies Board has worked extremely hard over the last five or 10 years to see to it that judges at every level, including recorders, are well versed in the sentencing policy, so as to bring about, not uniformity—God forbid!—but a broad measure of sentencing consistency. In my submission, there has never been a period in relation to the administration of our criminal system when there was less need of the power that is given in this clause for the Attorney-General to bring such a matter before the Court of Appeal. It demeans the judiciary. It is totally unnecessary.
§ 7 p.m.
§ Lord Elton
My Lords, what I chiefly envy the noble and learned Lord, Lord Denning, is, of course, his lucidity and conciseness of expression. But on an occasion such as this I also envy, with rather greater fervour, his ability to summarise long and conflicting arguments that have gone before without having to marshal rather conflicting pieces of paper with which I, at least, inevitably become confused. I shall do my best to use these props to give a resonable performance. I did not take the encouragement which I am sure the noble Lord, Lord Elystan-Morgan, intended me to take from the pronouncement that this is not a political Bill. I have noticed over the years that that pronouncement is made in the most seductive tones on those occasions when noble Lords opposite hope that they can most regularly seduce the loyalty of those who sit behind me on the Benches on this side of the House.
§ Lord Elton
However, we are dealing, are we not, my Lords, with what are strictly non-political matters. There has been general welcome for the separation of the powers to investigate and arrest, on the one hand, and the power to prosecute, on the other. That, I think, was a common starting point from which noble Lords radiated at different points in our journey. Many of your Lordships felt that local interest must be preserved. The Government agree with that. The noble Lord, Lord Wigoder, was anxious that the status of the local man should be enshrined in statute. He was not alone in that. The noble and learned Lord, Lord Diplock, quoted his valuable experience in the homeland of separated powers, the United States of America. His advice is that both control and accountability should rest with the local authority. In case I should misbehave myself in his absence, he has left the noble and learned Lord, Lord Scarman, to supervise me, which, as we have seen on another Bill, he is well able to do.
Your Lordships have been at pains to emphasise that our discussions on these matters are non-political and that the matters themselves are very strictly non-political. Indeed, it must be a prime concern, must it not, of all of us to keep politics out of the operation of the law. There can be no doubt about that. We have no extant example of a prosecution service accountable to a local authority in this country. Questions of prosecution are for chief constables. In this, they are not answerable to the police authorities. But the police authority is the nearest that we have to the sort of body that we would have to create if we were to have local accountability to the local authority, or in which the local authority was involved.
I really pause, with a certain amount of wonder and apprehension, at the enthusiasm of noble Lords who say that all this is a sacredly non-political matter and that we must keep politics out of it, when I consider what police authorities have done, and in particular, for instance, what the South Yorkshire police authority have recently done in the conduct of their responsibilities in another area that is supposed to be strictly non-political and which has had to be brought to the attention not only of my right honourable friend 1063 but also of the courts. That seems to me to show that that sort of authority need not forever be a bastion of apolitical justice.
The noble and learned Lord, Lord Denning, looking at the alternatives, said that no government Minister should have a hand in the decision whether or not to prosecute. The structure of responsibility for policy will, with modest adjustments, remain the same as it now is for cases taken up by the Director of Public Prosecutions. He is already responsible to the same person as is proposed in the Bill, a Law Officer of the Crown, the Attorney-General. The difference will be that under the new system his report will be laid before Parliament.
So I do not think that I can safely encourage your Lordships to disregard both what I have said in this matter and the powerful arguments of the noble and learned Lord, Lord Simon of Glaisdale, and retreat to the local strongholds in which the noble and learned Lord, Lord Denning, would like us to consign these matters and where, as he points out, they have safely resided for 500 years. Nor could we contemplate leaving the prosecuting solicitors under an obligation to accept instructions from the police, which is something that it would be difficult to avoid if we rested on a local system. For me, therefore, the local authority control does not seem appropriate. If, as the Royal Commission advise—and we wholeheartedly agree with them in this—responsibility for policy and for resources must be kept together, this points towards central authority. Our concern must therefore be to secure, nonetheless, a proper reflection of local needs.
That brings us to the question of the status and degree of independence of local Crown prosecutors. For much of your Lordships' reassurance I must ask you to wait for the White Paper, which many of your Lordships have rightly said will be of great importance in informing the House on this matter. The noble and learned Lord, Lord Diplock, said that the need for liaison between the local prosecutor and the police is essential, and he referred to the experience of the district attorney system in the United States. He argued that this militates against a centralised national system. I can tell the noble and learned Lord, through his monitor, that with the degree of devolution proposed by the Government there is nothing to prevent close and, if necessary, instant liaison between the police and the local Crown prosecutor. Local officers of the new service will deal with the vast majority of cases and will be located close to the courts and the police with whom they will work.
Let me therefore reassure the noble Lord, Lord Elystan-Morgan, that a national service does not mean a centralised one. It is, as I said in the debate on the Queen's Speech, our firm intention to devolve decision-taking to the local level to the maximum extent possible. We propose that the Attorney-General will lay down guidelines on the policy, but their application to individual cases will be left to officers who will be based locally.
§ Lord Elwyn-Jones
My Lords, will the guidelines from the Attorney-General be published, or will they be interdepartmental and private?
§ Lord Elton
My Lords. I shall endeavour to come to that in my concluding remarks. My right honourable friend's White Paper will, I hope, take care of much of this.
I pass, then, to the areas to which the Crown prosecutors will be appointed. The noble and learned Lord, Lord Elwyn-Jones. asked me about this. The local organisation of the service is one of the matters being considered by the management consultants. Account will be taken of their recommendations when we decide this. Subject to what they advise, the general intention is to appoint a Crown prosecutor for each of the 43 police areas of England and Wales. There may be opportunity to combine smaller areas, but that is our intention in principle. The Bill allows flexibility for the future, but there is no intention at present of moving to any different basis of organisation, such as circuits.
The noble and learned Lord, Lord Elwyn-Jones, asked why, in Clause 3(2)(a), it is foreseen that the police will continue to institute proceedings. It was the Royal Commission which recommended that the initial discretion whether to prosecute should remain with the police. The Government's proposals follow that recommendation. I am glad that the noble Lord, Lord Wigoder, on reflection, agrees that this should remain in the Bill, if I have understood him aright. This requires the continuing responsibility of the police for law enforcement, and represents the clearest point at which the dividing line can be drawn between the responsibility for prosecution, on the one hand, and for investigation, on the other.
As to the status of the people running the system, generally speaking Crown servant status is suitable for staff who do not form part of a service which is subject to guidance on questions of legality or merits from anyone at the centre. But the Royal Commission specifically criticised the prosecution arrangements we have now because they did not secure accountability. The commission were also concerned that there should be no separation between responsibility for resources and for policy. This would be the case if, as Crown servants, officers of the new service were to be, say, accountable to a local authority for resources but subject to the Attorney-General's guidelines on prosecution policy.
To continue with matters concerning the staff, the Working Party on Prosecution Arrangements, whose report is annexed to the White Paper of October 1983—by Committee I hope we shall have a shorter name for this august body—held discussions with the Prosecuting Solicitors' Society, with the National Association of Prosecuting Solicitors' Staff, with NALGO and with the Council of Civil Service Unions. The Home Office has since kept in touch with these bodies, and the Government's proposals for conditions of transfer to the new service have been discussed with them. This will continue in the future. This is necessarily a continuing process and it is natural that the staff concerned are disappointed not to have been presented with a complete package of proposals at the outset; but I am afraid that that would not be possible.
My noble friend Lady Macleod of Borve asked whether pay levels would be the same in the new 1065 service as are currently enjoyed by staff in prosecuting solicitors' departments. Pay levels in the new service will depend on decisions yet to be taken, such as the grading structure of the new service, in the light of the advice we expect to get from the management consultancy. In making those decisions Ministers will have very much in mind the need for an adequate number of staff of sufficiently high calibre to enable the service to fulfil its statutory duties. Because staff in the new service will be civil servants with a unified pay and career structure some change from the present variety of local authority pay levels will be inevitable, but there will be consultation with the staff concerned about how the transition from current to future arrangements is to be achieved fairly and consistently.
Still on matters of staff as I understood him, the noble Lord, Lord Wigoder, asked for reassurance that the total period of employment of a member of staff would aggregate among different periods of previous employment. It is the intention that periods of previous employment with local authorities should be aggregated for the purposes of the subsection—that is, subsection 5(b) of Clause 10—and we shall be looking closely at the drafting to ensure that that result is secured.
Your Lordships were concerned about certain aspects of our proposals for dealing with costs under the new system. This is a matter which will be dealt with, with much greater familiarity and authority, by my noble and learned friend the Lord Chancellor when he joins us in Committee, than I can offer your Lordships now. I should not mislead your Lordships. I do not mean the matter of costs in the Bill, but the cost of the system. I jumped the lines, as it were, as a railway train, in my speech. There are two sorts of costs. The cost of running the service that we have proposed I believe flows naturally from what we propose for the Crown Prosecution Service, but it does require some peripheral advantages to the system at the same time. As to the matter of costs in Part II of the Bill, that will be dealt with by my noble and learned friend.
I shall also be very eager for his support in the matter of referral of over-lenient sentences, for reasons which became increasingly obvious during this debate. As a layman (and I can claim to be no more) I can say that to laymen—the noble and learned Lord, Lord Denning, was kind enough to say that this was a matter in which laymen should be concerned—this does seem an eminently sensible provision. It will provide an opportunity for the law, as the layman broadly generalises all the institutions of criminal justice in the country, either to allay his fears that it is inadequate to its purposes if they are falsely aroused, or to assure him that the inadequacy, if it does exist, is recognised and will not therefore be repeated. That seems to laymen—indeed, to Her Majesty's Government—a wholesome and desirable thing.
The noble and learned Lord, Lord Elwyn-Jones, asked who would speak for the defendant the judge. The defendant will be entitled to have, if he wishes, legal representation at public expense, as provided for in subsections (2)(b) and 3. That is the same as when his case is referred to the Court of Appeal after acquittal, on a point of law; so we are 1066 following that precedent there. He also asked about the role of prosecuting counsel in relation to references to the Court of Appeal, given the Bar's code of conduct which precludes advocacy on sentencing matters. The Government do not expect that Clause 22 will make any difference to the role of prosecuting counsel at the trial, which is what the relevant part of the Bar's code of conduct relates to. When a case comes before the Court of Appeal on a reference, counsel appearing on behalf of the Attorney-General will need to state the facts of the case and to refer the court to the general sentencing principles established in previous judgments. It is the view of my right honourable friend that this involves no improper extension of counsels' role in relation to sentencing.
The same noble and learned Lord asked about anonymity. That will be a matter for rules of court, as it now is for reference of points of law under Section 36 of the Criminal Justice Act 1972. The intention is to safeguard it where that is feasible, but that may not be feasible or sensible in cases which have already received publicity. The best course may well be to leave it to the discretion of the court.
The noble Lord, Lord Wigoder, asked whether, if the Court of Appeal took the view that a sentence of two years should have been six, the Parole Board should take account of this. Our view is that the outcome of the reference to the Court of Appeal should in itself make no difference, although the Parole Board should take account, as they now do, of the gravity of the offence to the same extent as they would had that pronouncement not been made. All this refers to the referral of over-lenient sentences. There is, I suppose, one modest paradox in the position of those who do not like what we propose to do, because a good deal of the objection seems to rest upon the undesirability of exposing a decision of a judge with which senior judges disagree and which may or may not have alarmed the public. That sounds to a layman very much like saying, "If it's a mistake, it's an embarrassing one and it should be left alone". But I put that remark with the humility of a layman, and if it is offensive to noble and learned Lords they will remember that it was I who made it and not my noble and learned friend who will take this cause from my hands shortly.
In conclusion on that subject, the noble and learned Lord, Lord Denning, gave an example from his vast experience of a sentence which he gave which appeared to the gallery and to the media to be too short. He suggested that the gallery and the media did not know what they were talking about because they did not know what the noble and learned Lord knew when he passed the sentence. In what we propose the review will not be by an ignorant gallery and a clamorous media; it will be by the Court of Appeal, who will know the facts of the case. That satisfies me as a layman, and it will, as I say, take my noble and learned friend the Lord Chancellor, who is very far from being a layman, to convince noble and learned Members of your Lordships' House otherwise.
I now move fairly quickly and appropriately to time limits. I think that our discussions on those parts of the Bill had a certain air of familiarity which was nicely picked up by the noble Lord, Lord Elystan-Morgan, fresh from long discussions your Lordships had on the 1067 time limits in custody, access at what point in time to legal advice, for how long incommunicado, and the issue of codes of practice; so there is a certain similarity between the topics. But I hope that familiarity with the nature of the issues will not lead us to feel that the issues themselves are entirely similar. I am certain that all of us start from the common ground that scrutiny to curtail avoidable delays imposed on the progress of cases by the prosecution is indeed desirable.
The noble Lord asked for the intention behind regulations which may apply only in specified areas and which make different provision in relation to different areas. It is simply to allow for the maximum of flexibility so that the statutory scheme can take full account of the practical lessons which will be learnt from the field trials. As is well known, Crown Court delays in London are now much longer than elsewhere. Time limits which allowed for London problems could be too lax to be effective elsewhere. So there must be power to differentiate between, for instance, London and the provinces. This is the main example illustrating the need for differentiation, but it may indeed not be the only one.
In response to a pertinent inquiry by the noble Lord, Lord Wigoder, may I also say that the Home Secretary intends to make rules under Section 48 of the Criminal Law Act 1977 which, with effect from May 1985, will require the prosecution case to be disclosed before the trial of an offence in a magistrates' court, which could, if the defendant wished, be tried on indictment. We agree with the noble Lord that this should encourage defendants and thus advisers to go for trial by magistrates.
With a few exceptions, I have dealt with as many of the points that your Lordships have raised as I think can be contained within the scope of this speech from this Box. I shall try to deal with the remainder by correspondence and leave the correspondence on the record in the Library of the House, as is now becoming our established practice.
I cannot leave the Box, however, without referring to three matters which your Lordships have raised. One was foreshadowed, if I may so put it, by the noble and learned Lord, Lord Elwyn-Jones, who had obviously taken tea with my noble friend Lady Faithfull at a prudent time before these exchanges. The point was then elaborated by my noble friend Lady Faithfull and echoed by my noble friend Lady Macleod. It touches on juveniles. I am glad that my noble friend and her allies drew the attention of the House to the important implications of the creation of the new service for cases involving juveniles. She was kind enough to send my colleague at the Home Office an interesting memorandum on the matter, to which I understand he has recently replied; it may be so recently that my noble friend has not yet received it. I must say that the Government do not see the Bill as an occasion for more far-reaching changes in the arrangements for dealing with juvenile offenders as would be implied, for example, by a move towards the Scottish system of children's hearings, which I know that my noble friend finds attractive.
However, I can assure her that both we and the Director of Public Prosecutions are very much seized 1068 of the special considerations affecting cases involving juveniles and the need to bear them in mind. The diversion of juveniles from the criminal justice system altogether, where possible, remains an important feature of our approach. Under the new arrangements the police will have the same discretion as now to administer a caution rather than initiate proceedings, and before long we shall be issuing guidelines designed to bring about more consistent practice in this area. Where the police do decide to refer a case to the prosecutor, he will act as an additional filter. The setting up of the new service may not represent the radical change which my noble friend would seek, but I hope that she will accept that it should lead to more consistent practice in this area, and is to be welcomed on that account.
Secondly, the noble and learned Lord, Lord Simon of Glaisdale, in particular asked on what principle is the right of private prosecution founded.
§ Lord Simon of Glaisdale
My Lords, I asked on what principle it was impaired. I know what principle on which it is founded, which is a fundamental constitutional principle of individual liberty based on the rule of law. I wanted to know on what principle it had been impaired.
§ Lord Elton
My Lords, the noble and learned Lord has—temporarily at least—the advantage over me because in my present state of knowledge I cannot tell him. I was about to tell him why it was important to preserve it, but I gladly understand that that is a work of supererogation. If I am better able to say something useful in a moment, I shall do; otherwise, blushing, I move on to the next fragment of knowledge that I have before me.
The only remaining matter—and I want to sit down in a moment—is that of security of tenure. The new service is to be an integrated national one accountable through the Director of Public Prosecutions to the Attorney-General. Although in practice staff in the new service will have a great deal of local autonomy, they will be in the same position as other civil servants—accountable through their Minister to Parliament. Therefore, it would not be appropriate to accord them special status as regards security of tenure. This has never been thought necessary in relation to the director himself.
The arrangements for the procurators fiscal in Scotland are of course the product of a different historical tradition and represent a different form of service from the integrated one that we propose in England and Wales. I should remind your Lordships that not all who prosecute in Scotland are procurators fiscal. Many are deputies and assistants and they also do not have the same security of tenure. I can tell the noble and learned Lord in a late addition that it is not the Attorney-General's present intention to publish the guidelines to which he referred, but aspects of prosecution policy are an appropriate matter for my right honourable friend's accountability to Parliament, including the annual report.
I hope that I have been able to reassure your Lordships on some of the points that have been raised. I shall forgo my great peroration. I shall merely say that we have a Bill which is designed to bring about 1069 three reassuring and useful reforms to our system of justice in this country. I think that your Lordships are all agreed that the direction of the Bill is right. In most respects it is only questions of how the direction is achieved about which your Lordships have reservations. The principal reservation about direction itself of course is the matter of the referral of apparently over-lenient cases to the appeal court. That most difficult of points will be taken on by a more skilful, powerful and persuasive figure than myself. My job is simply to ask your Lordships to give the Bill, which is a sensible and reassuring Bill, a Second Reading. I beg to move.
§ Lord Campbell of Alloway
My Lords, before my noble friend sits down—and I know that he wants to sit down—may I ask him whether there is any prospect of getting the White Paper at any stage during the consideration of the Bill?
§ Lord Elton
My Lords, if my noble friend will permit me to answer the question, which I have already put on the record, it is our intention to have it before your Lordships before the Committee stage.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.