§ 5.4 p.m.
The Earl of Caithness
My Lords, I beg to move that this Bill be now read a second time.
The Bill before us is large and wide-ranging, and touches on a number of important issues which I feel sure will be the subject of lively debate in your Lordships' House. Indeed, it gives me great pleasure to welcome to our debate this afternoon the noble Lord, Lord Irvine of Lairg. He is a fellow Scot, an Anglo-Scot, but one who also has a great interest in that line north of Inverness which is sometimes forgotten in your Lordships' House but which I know will not be any longer with the presence of the noble Lord. I look forward with interest to hearing his maiden speech, together with the speeches of other noble Lords. The list of speakers shows the House at its very best; it shows an enormous range of experience and talent.
The Bill was very fully discussed in another place, where with one or two exceptions there was an impressive measure of agreement across party lines that the changes which the Bill would bring are both desirable and worth while. These changes cover aspects of criminal justice as diverse as court powers, the investigation and prosecution of fraud, juries and the law of evidence. The Criminal Injuries Compensation Scheme is put on a statutory footing for the first time, and the Bill re-enacts in more modern form the whole of our law on extradition.
I shall describe some of these in a little more detail later on. However, perhaps I may begin by echoing an observation made by my right honourable friend the Home Secretary when he introduced the Bill in another place. Wide-ranging and important as this Bill is, it is only part of a larger strategy for tackling crime. If crime could be eradicated by legislation—or indeed by the criminal justice system alone—it would not be the intractable and worrying problem that it is. That is why the Government have placed the emphasis they have on crime prevention, on building up the strength of the police force, on the achievement of close co-operation with other countries, to take only three examples. Your Lordships will understand very well the point that I am making. I want neither to understate nor overstate the significance of this Bill. The strengthening of the legal framework which I believe it achieves is a crucial piece in the jigsaw, but it is by no means the whole picture.
Turning now to the content of the Bill, most of the first 20 clauses implement recommendations of the Fraud Trials Committee under the chairmanship of the noble and learned Lord, Lord Roskill, which reported early last year. I am glad to see that the noble and learned Lord intends to contribute to our debate 1267 today. His committee's report provided an excellent basis for action on serious fraud.
Perhaps I may deal first with investigation and prosecution. The Roskill Committee remarked on the wide variety of bodies charged with investigating and prosecuting fraud. The arrangements for co-ordinating large cases, through the fraud investigation group in the Director of Public Prosecutions Department, were working well; and I say in passing that the Government warmly agree with that assessment. However, there was a case for what the committee described as a unified organisation to deal with the largest and most complex cases.
The Bill provides for such an organisation. The Serious Fraud Office will combine investigation and prosecution under one roof. It will work closely with the police. Its director will act under the superintendence of the Attorney-General, and a director-designate—Mr. John Wood, at present Deputy Director of Public Prosecutions—has already been identified. The new office will have the powers it needs, based closely on those already exercised by the company inspectors of the Department of Trade and Industry.
The noble and learned Lord's committee also homed in on limitations in court procedures as a source of difficulties in bringing complex fraud cases to trial. The Bill responds in three ways, all of which were favoured by the committee. First, it creates a means by which the prosecution would be able to transfer serious and complex fraud cases straight to the Crown Court without the need for committal proceedings. But the accused would not be deprived of the opportunity to put the strength of the prosecution's case to an early test. He would be able to apply to a Crown Court judge for the charges to be dismissed on the ground that there was no case to answer.
Secondly, building on experience of pre-trial reviews, it establishes for such cases a preparatory stage of the trial, before a jury is sworn. The judge would be able to clear the ground, identify the real issues in dispute and thereby ease the task of the jury. Thirdly, it reforms the law on the admissibility of documentary evidence. These are complex provisions, but their guiding principles are ones with which I believe most lay people would sympathise.
These principles are that—with suitable safeguards which the Bill provides—the judges can be trusted to exercise a wider discretion than they have now to admit documents, and juries can be trusted, more than they are at present, to make up their own minds about how much weight to give to documentary evidence. The arguments arise most vividly in relation to fraud. In such cases, documents are often of the essence, and well-founded prosecutions sometimes cannot be brought because of the inflexibility of the law. However, the same principles apply more generally, and these provisions of the Bill therefore extend to all criminal proceedings.
There is one significant recommendation of the Roskill Committee which, as your Lordships will know, we decided not to adopt. All but one member of the committee were persuaded that complex fraud cases raised such impenetrable issues that it should 1268 sometimes be possible for them to be tried by a specially constituted tribunal instead of a jury. We gave this a lot of thought and have not dismissed it altogether. But it would be a major step to move away from jury trial for serious offences. The changes in the rules of evidence, the better presentation of the evidence which the Roskill Committee recommended and the new system of preparatory hearings should all help to make the task of the jury easier. We do not underestimate for a moment the difficulties facing the jury in massive international frauds but would prefer to see how these changes work out before contemplating more radical change.
The Bill also makes an important change in the arrangements for taking evidence from children. For a child who has been the victim of a violent or sexual offence or has witnessed such an offence appearing in court can be an even greater strain than it is for an adult. Courts are busy, formal places and the circumstances of the offence can be such that even to be in the same room as the offender is a considerable ordeal. We know that as a result charges are sometimes simply not brought. The Bill will allow evidence to be taken from child witnesses by means of a live television link. We have announced today that we shall shortly be publishing a discussion paper on the important practical implications of taking evidence in this way—such matters as whether counsel should be in the same room as the child and so on.
I know that there has also been support for a slightly different approach under which video recordings of interviews with child victims made soon after the event would also be admissible as evidence. This raises more complex issues which need careful consideration and are also gone into in the discussion paper which I have just mentioned.
One of the most pressing problems we face is the substantial increase in the number of cases coming to the Crown Court and the delays to which this gives rise. My noble and learned friend the Lord Chancellor has been able to expand the resources available and to bring about improvements in efficiency. But the problem remains.
Ten years after the Criminal Law Act 1977 which set the existing distribution of business between the Crown Court and the magistrates' courts we thought it was not too soon to consider whether there were changes which could sensibly be made. Although we decided not to revive the James Committee's proposal that minor cases of theft should be triable only by the magistrates, we identified several offences for which the maximum penalty could safely be reduced to be solely within the powers of the magistrates.
These proposals represent a principled attempt to look at the matter afresh. The offences which we propose to reclassify as summary only are by no means trivial but they very rarely attract sentences above those which the magistrates can impose, and that should be the deciding factor.
I come now to a proposal to which I know your Lordships' House will want to give very close attention. Clause 29 gives the Attorney-General power to refer cases to the Court of Appeal for the court to give its opinion on the principles to be followed in sentencing in similar cases in the future. In the 1269 overwhelming majority of cases dealt with in our courts the sentence passed is, I believe, fully in line with what the public expects. But from time to time an apparently over-lenient sentence can arouse genuine concern. I am not just talking about a fuss in the newspapers, although it is on the newspapers and broadcast media that most people rely for information on matters of this kind. Such concern, even if it is misconceived, can do great damage to public confidence in our system of justice.
Some authoritative figures, including several whose voices carry great authority in your Lordships' House, have said that they see the solution as lying in a procedure under which the prosecution would be able to appeal against any sentence which it regarded as unduly lenient and the Court of Appeal would be able to substitute a more severe sentence. That course will no doubt be argued powerfully, and the Government will want to listen attentively to the arguments. We hesitate to adopt it for two reasons.
The first is that it is strongly ingrained in our system of justice that the prosecution has no direct interest in sentencing. The proposal, which was defeated in your Lordships' House during the passage of the Prosecution of Offences Bill in 1985, was criticised on the ground that it breached that principle. In the Government's view, the criticism was misconceived. But there is no doubt that it would be well made in relation to a full prosecution right of appeal or any other scheme in which the offender was at risk of a more severe sentence.
The second reason is more pragmatic but in its way no less powerful. The Crown Prosecution Service has made great strides in the short time since its establishment. But these are still very early days and the operation of a systematic right of appeal against sentence would, we felt, be an unfamiliar and controversial burden to impose on the service at a difficult time.
Clause 29 therefore contains a different proposal which differs also from the proposal debated in 1985. The main differences are that the procedure would be confined to sentences which in the view of the Attorney-General raised questions of public importance; would require the leave of the Court of Appeal before a reference could be made; and would be forward-looking in the sense that the court would be giving guidance for the future rather than raking over the embers of the past. The virtue of a procedure on these lines is that the prosecution would not be unacceptably involved in sentencing but there would be a means by which the issues raised by a particular case would be brought to the court's attention in the context of that case.
The proposals in the Bill for the confiscation of the proceeds of crime build on the measures in the Drug Trafficking Offences Act 1986. Drug trafficking is perhaps a uniquely heartless and destructive offence. We recognised that in moving on to cover other profitable offences we might not want to follow the scheme in the 1986 Act exactly; nor have we done so.
Under Part V of the Bill, the courts would be able, but not obliged, to make a confiscation order where the profits appeared to exceed £10,000. The power would be confined to offences actually before the 1270 court, so there would be no presumption, as there was in the 1986 Act, that all of the offender's assets were the proceeds of crime. Nevertheless, the teeth of the confiscation process would be as sharp as ever. The offender's assets could be frozen before trial and steps taken under the authority of the High Court for the realisation of his property to meet the confiscation order. There is also provision for making such orders effective in other countries which have joined with us in reciprocal agreements. These are extensive powers but they meet a feeling on the part of the public which I believe runs very deep that those who engage in highly profitable crimes should not be able to serve their sentences and then live comfortably on the proceeds.
I mentioned the provision in the Bill which will enable child victims of sexual abuse and violent crime to give evidence through a live television link. It is one of a number of steps we are taking in the Bill to improve the position of the victims of crime. The victim tends to be the forgotten man or woman of the criminal justice system whose interests are too often overlooked. We are trying in a variety of ways to correct the balance.
First, the Bill makes several important changes to encourage the court to make greater use of compensation orders, including a new requirement to give reasons where it has power to make an order but decides not to do so. Secondly, Part VI of the Bill puts the criminal injuries compensation scheme on a statutory footing. The scheme has existed on a non-statutory basis since 1964. It is a well-established and valuable means of meeting society's responsibilities towards the victims of violent crime. But it is right that its future form and existence should be put beyond doubt and that the expectation of victims that they will be compensated for their injuries should be entrenched in statute.
Finally on victims, Clause 125 contains a small but important change in the arrangements for preserving the anonymity of rape victims. The dreadful rape at the Ealing vicarage brought home to many of us the harm and distress that can be caused to an innocent victim by irresponsible press coverage of such cases. The law already prohibits the publication, after someone has been charged with the offence, of any matter likely to lead to the identification of the woman. What Clause 125 does is to extend the protection back to the point at which a complaint of rape has been made by prohibiting the publication of the woman's name, address or likeness.
I come now to the proposal in Clause 89, to abolish the right of the defence to remove jurors without giving cause. We seek the abolition of peremptory challenge because, whatever its justification in the past, it now seems wrong in principle that the defence should be able to remove jurors without giving reasons. Furthermore not only is it offensive to the juror who has given up time to perform a public duty which most people still rightly take extremely seriously, but also in cases with large numbers of defendants it has the potential (and I stress the word "potential") to distort the composition of the jury in a way which could be harmful to the interests of justice.
I should mention one closely related matter. My right honourable friend the Home Secretary has 1271 acknowledged that the abolition of peremptory challenge would have implications for the procedure under which the prosecution can stand jurors by for the Crown. This is used more rarely and for different purposes, but it seems right that if peremptory challenge is to be abolished its future use should be confined to strictly limited categories of cases. My right honourable friend the Attorney-General has drawn up draft guidelines which would have that effect.
I should also like to mention one significant and much less controversial change which the Bill will make. Clause 90 increases the maximum age for jury service from 65 to 70. Service would be optional for those in that age range and they would be excusable as of right. But I know that many of our senior citizens would welcome the chance to serve the community in this way. They have a great deal to contribute.
Clause 94 of the Bill is particularly welcome to me as the Minister responsible for prisons. It allows greater flexibility in the accommodation of young offenders and should make a significant contribution to easing overcrowding by enabling fuller use to be made of the detention centres.
Part IX reforms and re-enacts the law on extradition. Big-time criminals are becoming more and more internationally mobile. The need to pursue them and bring them to justice is something on which we and our international partners can readily find common cause.
Our aim has been to provide procedures which are flexible and effective while retaining crucial safeguards for the fugitive against arbitrary or oppressive treatment. I shall not detain the House with the details of Part IX, save to mention one important point. Clause 101 makes it possible selectively to dispense with the requirement that states seeking the extradition of fugitives from this country should demonstrate a prima facie case. This is at present a great impediment to extradition to countries, including our closest European partners, in whose systems we have complete confidence but whose law does not recognise the concept of the prima facie case. We have made it clear that we shall use this provision highly selectively and after an opportunity for parliamentary debate in each case. Finally I should mention Clause 122, which makes it possible for remands in custody after the first remand to be for a period longer than the present eight days up to a maximum of 28 days. We consulted widely about the idea of a longer remand period. Many of those whom we consulted expressed fears that it might lead to longer periods awaiting trial and therefore a higher remand population. We take these doubts very seriously and would not wish to go ahead if we felt there was a real risk of the proposal back-firing in that way. Nevertheless there remains a powerful argument for change. Routine remand hearings tie up prison staff and therefore indirectly affect the regimes within prisons. Our intention is therefore to mount some experiments under Clause 122 to test the idea. I hope this cautious approach will commend itself to your Lordships.
I have inevitably dealt somewhat selectively with what is a wide-ranging Bill. But I hope I have given 1272 sufficient of the flavour of what we propose for the purposes of our debate today. The present Bill is the culmination of a series of measures which this Government have brought forward to rationalise the powers of the police and the courts and the arrangements for the prosecution of offences. As with its predecessors, it aims to strike a balance between the essential safeguards for the interests of those accused of crime and the proper enforcement of the law. Our debates will, I suspect, not be untouched by controversy. But I hope that there will be general agreement that over the broad range that I have described the changes which the Bill makes are timely, sensible and well balanced. I beg to move.
Moved, That the Bill be now read a second time.—(The Earl of Caithness.)
§ Lord Elwyn-Jones
My Lords, Mr. Gladstone in introducing one of his Budgets said that he would not call it a labour of Hercules because Hercules could not have done it. The same might be said of the task of the Minister in moving the Second Reading of this Bill of 134 pages and 136 clauses. Whether the Criminal Justice Bill is intended by the Government as a swan song or an epitaph I know not. Clearly the 20 speakers taking part in this debate—and we look forward particularly to the maiden speech of my noble friend Lord Irvine of Lairg—cannot cover each and every clause of the Bill, although the Minister has made a gallant attempt to cover a good deal of it. If there is to be a Committee stage—and I gather from the assumptions of his speech that there is to be one—it will be long and detailed and there will be an abundance of amendments that noble Lords will wish to put forward in dealing with this important matter.
While we on this side of the House welcome several of the provisions of the Bill, some of which the Minister has identified and stressed in his speech, in my submission it fails to address in any fundamental way the two major problems now facing us on the criminal justice scene. The first is the rising crime rate and the second is the dangerously high and rising prison population. The Bill attempts to deal with the increasing challenge of crime by a mixed bag of piecemeal and unrelated proposals. Some of the most vital matters in the Bill, and especially those affecting our civil liberties, such as the proposed amendments relating to juries and extradition, are squeezed in at the end of the many complex sections of the Bill. We must ensure that if the time comes to consider them they are not considered hastily or because of the pressure of political events which may or may not be pending.
One such provision in the Bill is contained in Clause 89 which abolishes the defence right of peremptory challenge about which the Minister has spoken. It has been sought to justify the change on the alleged ground that defendants have used challenges to obtain acquittals from so-called soft juries. In fact investigation into the matter by the Crown Prosecution Service has revealed a higher rate of convictions in trials in which challenges were made than in those in which the defendants made no challenge. It is a curious statistical fact and it may be no more important than that. But it defeats the basic approach which has been put forward by the Government in the matter.
1273 The right to challenge for cause is not an adequate substitute for abolishing peremptory challenges altogether, as has been proposed. It could open the door to a series of embarrassing and even unsavoury challenges to which potential jurors would be subjected.
The traditional case for peremptory challenge was stated by the Government in the White Paper issued on the matter. It pointed out that the right of peremptory challenge, which is incidentally older than trial by jury or even the Magna Charta and which has long been a marked feature of our criminal proceedings, is to enable the defendant to have confidence in the jury even when he is unable to assign any specific reasons for objection. In my submission that view is still valid.
Coming back to the major matters to which I referred a few moments ago, the challenge of crime has not yet been defeated by any means. The facts to the contrary are grim and I fear that they speak for themselves. The number of offences recorded by the police in England and Wales rose from 2 million in the mid-1970s to over 3½ million in 1985. There were 3,794,000 offences recorded by the police between October 1985 and September 1986. That was an increase of 6 per cent. on the previous year. Those statistics do not include figures for the considerable amount of unreported and unrecorded crime. In spite of the best and most dedicated efforts of the police, they cannot cope with crime of those dimensions.
Detection and conviction rates have decreased substantially and yet the greater probability of arrest and conviction is surely the most likely way to deter the criminal. However, the facts are that in 1985 nearly two out of every three criminals got away with their crimes; five out of seven burglars escaped with their loot.
I well remember the harsh reproach made by the noble Viscount, Lord Whitelaw, against the Labour Government about 10 years ago. I have mentioned this in his presence on a previous occasion. The situation then was far less serious than the situation we face today. The noble Viscount said:A government that cannot protect its own citizens from attack in the streets of its towns and cities; that cannot protect property from damage or homes from intrusion, has failed to face up to the basic duties of government".What is happening now in the streets of our towns and cities is unhappily far, far worse than when those words were gravely spoken.
The Bill, and if I may say so government policy in general, offer no answers to this problem. As Sir Kenneth Newman the Commissioner of the Metropolitan Police said:The volume of reported crime is an indicator of the health of society generally".Perhaps "ill health" would have been a more appropriate description. Report after report of commissions such as that of the Archbishop of Canterbury and the Commission for Racial Equality have shown that crime on its present scale has its roots in the nature of our society. The problems of crime are inevitably worse in the heart and centre of several of our great cities. Nothing like enough has been done to attack the conditions that breed despair, violence and 1274 in the end crime; namely, slums, poverty, racial discrimination and disease. Unemployment has clearly been a contributory factor, although it is only with reluctance that the Home Office has conceded that fact.
Surveys by the Association of Chief Officers of Probation have found that a person on a probation officer's caseload is between three and five times more likely to be out of work than a non-offender from the same area. The price we pay for millions and millions of unemployed is not measurable only in economic terms.
The way our penal system has dealt with this situation has been to confine more and more offenders to prison. Relative to our population, the United Kingdom has more people in prison than any other EC country, with the possible exception of Turkey. Our readiness to gaol offenders, as NACRO has shown, has increased over the past decade. I hope I was right about Turkey. I hear some questions.
§ Lord Elwyn-Jones
I beg your Lordships' pardon. It is not in the EC, but it is a country which has more people in prison. However, with that one exception, and I shall refresh what I am pleased to call my memory about it in due course, our record is the most serious in that respect.
In dealing with this aspect I have in mind not only the serious prison disturbances and the considerable damage that has occurred in our prisons, but the intolerable overcrowding within so many of them. As we have reiterated several times in this House, that has reached not only scandalous but dangerous proportions. The report of Her Majesty's Chief Inspector of Prisons in 1985, published in February of this year, showed that the prison population reached its highest ever levels in 1985. The report states:In many cases it was more a question of getting through the day than operating a regime".The average population in prison establishments in the United Kingdom in 1985 was 53,300. The Government statistical office has projected the total prison population in England and Wales to be between 52,800 and 58,900 in 1994. Yet fewer than one in five of our prisoners has committed a serious crime involving violence, sex or robbery. However, the Bill offers no alleviation to this situation and contains no significant proposals to reduce the number of prisoners. If the appalling conditions in many of our prisons had produced evidence of its influence for good on the conduct of prisoners after leaving prison that at least could be put in their favour. But that is not so. Sixty per cent. of male offenders and 38 per cent. of female offenders leaving penal establishments are back before the courts within two years. Re-offending rates are higher for young offenders, two thirds of whom are reconvicted within two years of release.
As the Home Secretary has said:The general idea that a period of incarceration in overcrowded conditions will create a better man is not credible".Why then have the Government allowed the position to deteriorate year after year as the number of crimes has increased? Several provisions in this Bill instead of increasing alternatives to prison may well result in 1275 increasing the use of custody. I shall mention only one or two such provisions.
Clause 93 in Schedule 8 of the Bill for example, makes custodial sentences available for breach of specified activities in supervision orders for behaviour which is not in itself criminal. Retrograde also is an amendment to another Act in Clause 122 to permit an experiment to be made—and the noble Earl has referred to it—in certain areas with a new arrangement to replace the present eight-day limit on the length of remands in custody. Under the new arrangements magistrates will be able to remand defendants in custody for 28 days unless they consider that it will be possible to make progress with the case after a shorter remand period. Yet remand hearings are frequently the only time when defendants can see their lawyers. No steps have been taken in the Bill to reduce the considerable number of those remanded in custody, which has gravely aggravated the overcrowding. If the Minister can tell us why we shall be grateful.
Another provision in the Bill which could well increase the prison population is that contained in Clause 30 to substitute life imprisonment for 14 years in the Firearms Act as the maximum penalty for carrying firearms with criminal intent. This may not only add to overcrowding but would have a further serious defect. To provide the same maximum penalty for carrying firearms and for actually using and firing them would disregard proportionality as between one offence and another. The Police Federation—and after all the police are liable to be in the front line in this situation—has expressed concern over this proposal, as it may reduce any incentive in the armed criminal to refrain from using his gun and firing it at the police as a means of escape. It would expose the police to fresh dangers.
In regard to this same need to look to the possibilities of reducing the number of those in prison, why does the Bill make no attempt to reduce the number of fine defaulters who are sent to prison? In 1985, 20,491 fine defaulters were sent to prison. Surely that could be dealt with without exposing our society to the serious risk of increasing crime. Indeed, is there not much to be said in this field—and it has been said by one organisation, I think the probation office but I cannot remember—for making it impossible for a court to commit an offender to prison when the original offence itself is non-imprisonable unless the defendant has wilfully refused to pay? Should not our procedure require the court to consider every other form of enforcement before a defaulter is imprisoned and to review the circumstances of the prisoner as imprisonment continues?
There are other measures which could result in the reduction of the prison population. Perhaps one limiting proposal would be to deal with the fact that there are now 339 inmates in prison in England and Wales with a disorder which in the opinion of the medical officer would make it appropriate for them to be detained not in prison but in hospital under the terms of the Mental Health Act.
We welcome the provision in Clause 33, which I believe was devised by the parliamentary all-party Penal Affairs Group, that tightens up the criteria that 1276 must be satisfied before a custodial sentence can be passed on an offender aged under 21. Should not consideration be given to extending those criteria to adult offenders? One reason for our large prison population is the length of many prison sentences. In our perilous situation should not a supervised release scheme be introduced for short-term prisoners of the kind that was floated by the Home Office in May 1981 but abandoned later that year? Under that proposal, which I understand would reduce the number of prisoners by 4,000 or 5,000, prisoners would serve a shorter period in prison followed by a period of supervision in the community similar to parole supervision, with the threat of recall to prison if they misbehave—an effective sword of Damocles over the offender's head.
There are many other aspects of the Bill to which it would be of great interest to refer, but I see that there are some most notable and distinguished speakers who are to follow, several of whom are far more qualified than I to speak on these matters. As regards the fraud provisions in the Bill, I am glad to see that the noble and learned Lord, Lord Roskill, is on the roster of speakers and that my noble friend Lord Mishcon has kindly, at my suggestion, agreed to comment on that matter.
Clause 29 will inevitably be a subject of discussion. It will enable the Attorney-General, when he considers that a sentence passed by the court raises a question of public importance, to refer the case to the Court of Appeal for that court to give its opinion on the principles to be observed in sentencing similar cases in the future. It is clearly directed against sentencing which is thought to be too lenient. I have a slight unease about that. Does it not constitute a reversal of our long-established and long-respected tradition that the prosecution, the Crown, takes no position on the sentence that a prisoner should receive? That should be, and is, the responsibility of the judge. Clause 29 throws the Attorney-General right into the sentencing arena.
The fact is that happily the noble and learned Lord the Lord Chief Justice—and it is good to see him here and to know that he is to speak—has not been reluctant to state what principles should apply. He has done so with distinction and authority on many occasions. On this side of the House our preference is for the proposal contained in the White Paper, Criminal Justice—Plans for Legislation, that the Judicial Studies Board should be given a statutory duty to assemble and publish for the benefit of judges, magistrates and the public, the Court of Appeal's guidelines in a single, regularly updated and effective document. I submit that that would be a useful corrective to excessive reliance on imprisonment.
We look forward to hearing the views of noble and learned Lords and other noble Lords on this highly important Bill. I only pray that I may be a little too pessimistic about its possible outcome and that before very long we may be able to tackle those two major matters of concern to our community—too many crimes and too many prisoners.
§ 5.46 p.m.
§ Lord Harris of Greenwich
My Lords, I join the noble and learned Lord and the noble Earl in express- 1277 ing our pleasure that the noble Lord, Lord Irvine, is to make his maiden speech today. We all very much look forward to hearing him.
I think it is true that all opposition parties describe all criminal justice Bills as ragbags. They did so when Mr. Chuter Ede introduced his Criminal Justice Bill in 1947 and as far as I know it has been said about every other criminal justice Bill since then. It has been said about the present Bill. Of course all opposition parties have been broadly right for these measures are in reality criminal justice (miscellaneous provisions) Bills. Although the Home Office does its best to suggest that one or two overriding principles run through each of these Bills, that is rarely the case.
How then should they be judged? The most obvious and sensible test is to examine the central issues of criminal justice policy which cause most public anxiety and also concern the professional and other bodies that work in the system and to see how the current Bill deals with those problems. Let me say at once that the present Bill passes that test on a number of matters. There has been, and remains, serious public concern about the manner in which the victims of crime are treated. It is right, therefore, to express an unqualified welcome to the Government's decision to put the criminal injuries compensation scheme on a statutory basis. Next, the Government are right to move with dispatch to implement one of the most important recommendations of the report of the committee presided over by the noble and learned Lord, Lord Roskill, whom we very much look forward to hearing.
Recent developments in the City and elsewhere have confirmed the judgment of the noble and learned Lord and his colleagues that we require drastically to improve our arrangements for dealing with serious fraud. Therefore, it is right to give an unqualified welcome to the decision to establish a serious fraud office. However, I hope that that office will receive adequate resources. The Crown Prosecution Service—to refer to another new service—was announced with a great rolling of drums and most of us viewed it as a considerable improvement on the situation that preceded it. However, substantial criticisms were made that it was under-resourced. The crucial aspect is that when the Treasury agrees to the establishment of the new services or offices it should agree to give them adequate resources.
I could list a number of other matters, such as the use of video links in child abuse cases, on which we find ourselves in full agreement with the Government. But on a number of other matters, including the important question referred to by the noble and learned Lord, Lord Elwyn-Jones, the proposed amendment to the law relating to peremptory challenge, with which my noble friend Lord Hutchinson of Lullington will deal, on which we are unpersuaded that the Government's decisions are correct.
It is the omissions from the Bill, as much as its content, that cause us most serious concern, because, returning to the criteria that I set out a few moments ago, I should have thought that there would be little doubt about the most serious problems facing our criminal justice system at the moment. What is 1278 striking about the Bill is that so many of them have been ignored. First, there is deep anxiety about the increasing level of serious crime in this country and about the inadequate resources available to deal with it, especially in some of our most deprived inner-city areas.
I do not propose to become involved in the increasingly childish sport which is popular down the corridor but fortunately is less so in this House in which it is suggested either that the Government are directly and wholly responsible for the alarming increase in crime since 1979 or, alternatively, that the Labour Party consists exclusively of an army of wild-eyed extremists anxious to promote lawlessness in our streets. That type of virulent nonsense indulged in by some of the sillier enthusiasts for the politics of confrontation only damages still further the regard the public has for some of its political leaders.
On a number of occasions we on these Benches have attacked those members of the Labour Party in London and elsewhere who, through their network of publicly financed, so-called police monitoring groups, have with vigour and malice done so much to poison relationships between the police and the community. Fortunately the electorate is now beginning to respond to those excesses in a fairly emphatic manner. Similarly, we have on some occasions criticised the Government. We have drawn attention to a relationship, as the noble and learned Lord did a few moments ago, between high youth unemployment and crime, and on the basis of research evidence to some relationship between unemployment and drug abuse.
It is foolish to suggest that we can experience levels of 70 per cent. or 80 per cent. youth unemployment in some inner-city areas and be surprised if some of those youths turn to crime. It is as foolish to argue that increased crime is caused solely by unemployment as it is to suggest that there is no relationship whatever. One has only to look at the criminal statistics in years of relative economic prosperity to recognise that no such simplistic interpretation is justified.
That brings me to the first significant omission from the Bill. One of the most serious developments during the Government's period of office has been the growth of trafficking in heroin and cocaine. It has created and is creating deep anxiety among parents in both affluent and deprived areas of this country, as I think we all well know. It is a great pity that on one matter the Government have remained wholly inflexible. The noble Earl referred to the Drug Trafficking Offences Act.
As he will recall, when that Bill was going through this House, the noble and learned Lord, Lord Denning, and some of us on these Benches did our best to persuade the Government that in one important respect the Bill was flawed. We pointed out that all American experience had demonstrated—the Government of course rightly drew on American advice for their Bill—that it was essential to make it far more difficult for the sophisticated criminal, responsible for organising the industry, to pay large cash sums over the bank counter and thus into the banking system. That is why the Bank Secrecy Act in the United States is aimed at the laundering of money. It requires all cash deposits of 10,000 dollars or more to be reported to the federal authorities.
1279 The Federal Bureau of Investigation and the Drug Enforcement Administration have told me that without such a provision they believe that their campaign against the illicit drug industry would be gravely imperilled. The United States Attorney-General has said the same in testimony to Congress. I hope that the Government are prepared to look at this matter again. I am well aware that the banks here are opposed to such a provision in our law, but so of course were the American banks. However, after the evidence given by the Assistant Commissioner (Crime) of Scotland Yard to the Select Committee of another place, I hope that the Government will agree to re-examine the position, because I believe that without such a provision the battle against the importers of heroin and cocaine will be seriously weakened.
I turn from one matter of serious public concern to another—the crisis in our prisons. My noble friends and I should like to express our great pleasure at the major advances that have been made in recent weeks to implement the proposals in the Home Office document Fresh Start. For years, prisons have been plagued by poor industrial relations. A great deal of that has been caused by the excessive level of overtime worked in a number of establishments. We welcome the decision of the POA executive to recommend its members to vote in favour of those proposals. At the same time, it is right to congratulate the department on the highly competent and professional manner in which the work on those proposals was carried through.
I turn now to conditions in the prisons. I must say, as the noble and learned Lord did a few moments ago, that at a time when prison numbers are cruising effortlessly towards 50,000, it seems odd that one of the Government's few significant ideas for dealing with the crisis is to introduce proposals which may increase the size of the prison population. First, why on earth have the Government returned to the idea, twice rejected by the House, of giving the Attorney-General the right to refer cases to the Court of Appeal when he believes the sentence to have been unduly lenient? I believe that that proposal is undesirable in principle and would be ineffective in practice. We shall return to our opposition to the issues of principle. They scarcely require repeating today, because on the last two occasions the argument on principle was decisively against the Government. I realise that the proposal today is rather different, but nevertheless it has the same basic approach.
We should recognise why we are debating the issue today. It is because in a number of cases in recent years a claque of publicity-hungry Members of another place, together with the editors of a number of tabloid newspapers, have chosen to mount a series of assaults on members of the judiciary who have, in their excited and often ignorant view, imposed lenient sentences.
How often have we seen the headline, "Angry MPs demand that judge should go"? I do not know whether the MPs concerned are all that angry, because, as in a number of cases I think their principal interest is self-publicity, I should have thought that following those orgies of tabloid newspaper headlines, they wear not a scowl on their features but a self-satisfied smirk.
The noble and learned Lord the Lord Chancellor complained in strong language about just such 1280 conduct only a few days ago when he was addressing an audience of solicitors in London. I very much agree with everything that he said. What I have said is very similar to his general approach. But that is surely the right way to deal with this problem: on the public platform and not by a provision of this kind in this Bill. Quite apart from anything else, why does anyone believe that the critics of the judges will be mollified by this proposal? I am firmly opposed to the suggestion that the Court of Criminal Appeal should have the power to increase sentences. But at least I understand the logic of that approach. To give a right of appeal for the courts to lay down only new guidelines which they can do now in any event seems to me entirely pointless. We shall vote against this proposal.
Next, we are entirely opposed to the suggestion that it is desirable to increase the penalty for carrying firearms from 14 years to life. Can it seriously be suggested by anybody that 14 years is a trivial sentence? As the noble and learned Lord, Lord Elwyn-Jones, asked a few moments ago, how can it be right to make no differentiation whatever between the maximum penalties available for carrying firearms and for using them?
We on these Benches supported the proposal to increase to life imprisonment the sentence which could be given to those involved in organising the trafficking in cocaine and heroin, for in many cases the consequences of such behaviour can lead to the death not of a single individual but of many. But we are opposed to increasing still further the number of offences which can attract a sentence of life imprisonment. All that we succeed in doing, if we constantly move in this direction, is to lessen the gravity of the offence of murder.
If, as it is so often argued, criminals involved in serious crime calmly weigh up and calculate the possible length of sentence when considering how they are going to conduct themselves in some criminal enterprise, there is a clear risk that for some it would reduce any incentive to refrain from using firearms as a means of escape. We are opposed to Clause 30 and we shall vote against it.
Finally, I wish to give notice to the Minister of a number of matters on which we shall wish to propose amendments at either Committee or Report stages of the Bill. First, we intend to put down amendments dealing with the issue of Crown privilege for prisons. We share the view of the Home Affairs Select Committee of the House of Commons that it is time to phase it out. We regard it as desirable to follow the example of National Health Service hospitals, where of course the Government at first strongly resisted similar proposals before ultimately conceding the issue after strong and sustained parliamentary pressure.
The abolition of Crown privilege would not end overnight the squalor in our prisons, but we believe that phasing it out, imposing precise time limits for meeting acceptable standards and introducing the policy in the near future for, let us say, all post-second world war prisons, with the rest coming rather later, would have a dramatic effect in speeding up improvements.
Next, we intend to put down amendments relating to the scandal—and scandal it is—of the misuse of 1281 police cells. We have discussed this in this House on a number of occasions, most recently during the debate initiated by my noble friend Lord Donaldson of Kingsbridge. Let me give three illustrations of what is happening at the moment. This is a letter from a father regarding his 23 year-old son awaiting trial on a charge of theft. He sounds a reasonable man; he pays tribute to the police, the prison service and the Home Office officials with whom he dealt.
He said that this young man was moved from Wormwood Scrubs to an underground cell of the magistrates court at Camberwell Green because of overcrowding. There was no fresh air or daylight and no provision for any exercise. The cell was about six feet by six feet and furnished with a bunk somewhat shorter than he is. After three days in that cell in that magistrates' court building he found that it was far more than he could cope with. He did not know where he was or the time of day. As far as he was concerned he was in a box with a five inch by four inch slit in it.
The father said, and I quote him:I contacted the Home Office to find out how long our son would be kept in those conditions. I was informed that had I not complained he could have stayed there for up to three months. I suggested that the Home Office had no right to keep men in such conditions and that my son ought to at least be given the same rights as those afforded to a dumb animal".He added this:I don't understand how any society can tolerate this neglect of human rights"—and so say many of us in many quarters of this House.
I now turn to the testimony of a justice of the peace who was a member of the board of visitors at Holloway Prison. In her court, South Western at Battersea, the police have to hold 12 women in six cells leading off a small corridor. There was not even a single shower. Daylight came through a high window of opaque glass in each cell. In other cell areas there was, she says, no daylight at all. Here, she says, a woman can live in conditions of sensory deprivation from the outside world for several weeks.
Finally I give an example of another woman prisoner. She says that she and her cellmate had to sleep on the floor. On the first night the other woman threw a fit and tried to slash her wrists with the top off a Coke can. Another woman, suffering from cystitis, had to urinate on the floor because the overwhelmed police officers could not get her out of her cell in time.
Such a situation in this country is wholly outrageous. None of these people has been convicted of any offence, yet they are being treated like battery hens. Many of them will not be convicted; and even many of those who are convicted will not be sentenced to periods of imprisonment. My colleagues and I will be introducing amendments at a later stage of the Bill to deal with this offence against human decency. I hope that we shall not be told once again that it is all the fault of the Government's predecessors and that the prison building programme should have been started earlier.
I have said on a number of occasions, as the noble Earl will be aware, that I support the Government's building programme. But that programme, though desirable, is having little effect on the remand 1282 population which is rising at a frightening rate. Many of the new prisons which are being built, are being built—for reasons that we all understand—in tranquil, rural England, far away from the major urban centres where most of the remand prison problem arises. The Government are using what is in fact a second prison system administered by the police who want no part in this whatever, as the noble Earl will be aware, and without even the protection of a supervising board of visitors, which at least one has in every prison department establishment. They are doing this at a time when the statisticians warn that at the present rate we could have another 10,000 prisoners in prison department establishments by the middle of the next decade.
A few moments ago the noble and learned Lord, Lord Elwyn-Jones, said that the Bill before us today may not complete its passage through the House before the general election. That in the view of some of us at least may not be too much of a tragedy, for in the dying weeks or months of a Parliament it is inevitable that Ministers find it hard to make some of the concessions on some of the important issues we shall be debating. It is only fair to say that that would have been true of many past governments as well. What makes it even more difficult now is the extravagant language which has become the currency in debates on criminal justice issues.
I think that it is right to express firm views on matters of the sort that we are debating within this Bill. But there is at the same time an overwhelming case for attempting in this House to create a climate of co-operation when we are debating these issues. I think our fellow citizens, some of whom have been the victims of crime and others who are now nervous even of opening their front doors at night, are not impressed by bitter denunciation and counter-denunciation. They expect their Parliament to understand their concerns and do its best to meet them. That, I believe, is what this House will want to do and we shall do our best on these Benches to play our part in that debate.
§ 6.11 p.m.
§ Lord Roskill
My Lords, perhaps I may first join with those of your Lordships who have already spoken in expressing keen anticipation of the maiden speech of the noble Lord, Lord Irvine of Lairg. Unlike those of your Lordships who have already spoken, I claim the privilege of having listened to the noble Lord on a number of occasions, not, let me hasten to add, in this House or in another place, because that would be wrong, but elsewhere. On some occasions, I have been persuaded that he is right and on some occasions—I am sure the fault was mine—I have not been so persuaded. But win, lose or draw, the noble Lord's arguments have always been most beautifully presented and I am sure he will be a great asset to this House.
The second matter is to proffer a humble apology to your Lordships if I do not stay to the end of the debate, owing to a longstanding commitment. I offer particular apologies to the noble Earl the Minister that I may not hear his reply and to the noble Lord, Lord Mishcon, if it is he who will deal with the instance of fraud upon which I shall concentrate in the next few minutes.
1283 When in February 1986 the report of the Fraud Trials Committee—I am not sure whether in deference to the noble and learned Lord, Lord Elwyn-Jones, I should call it my swan song or my epitaph—was debated before your Lordships' House, many noble Lords, in agreement with the unanimous view of the committee, stressed the urgency of securing reform of the criminal law in order to deal with the appalling growth of commercial fraud which for some time past had disfigured and disgraced, and is still disfiguring and disgracing, the City of London. In the course of that debate I ventured to say that I did not doubt that some of our committee's proposals were capable of improvement. It is therefore a source of great satisfaction to those of us who laboured long and hard on that committee to see not only the adoption but also the improvement of the majority of our recommendations.
We were of course, limited by our terms of reference to considering only serious commercial fraud cases. But we pointed out that with many of our recommendations, such as the long overdue reform of the rules of evidence in criminal cases, there was no logical reason whatever why our suggested reforms should not be applied through the length and breadth of all criminal trials. I am sure all my colleagues on the committee join me in saying how delighted we are to see that that is now being done.
Nothing, absolutely nothing, that has happened in the City of London since our report was published in January last year has made the reform of the criminal law in relation to serious fraud cases one whit less urgent. If possible, it has become even more urgent. Whatever its fate may be—and I must not for one moment enter into politics—I trust that the early part of this Bill will pass on to the statute book as soon as possible.
It is an unhappy fact that most reports commissioned by governments, whatever their political complexions, gather dust until they moulder and are completely forgotten. I therefore congratulate the Government on the speed with which they have acted on our recommendations. I hope that the Bill, now it has passed through all its stages in another place, may soon find its proper home on the statute book. I confess—and I had better say this now, lest silence suggest otherwise—that I regret, and I am not the only person who regrets, that the Government have not gone further and grasped the nettle regarding jury trials in serious fraud cases. Had they seen, as we saw on the committee, the unbelievable complexity of some commercial frauds which have not even been prosecuted because of that complexity and the difficulties of ordinary people understanding them, they might have been less critical of the proposal.
There is one subsection of the Bill—subsection (8) of Clause 2—the provisions of which I simply do not understand. I do not think it is my fault. The subsection proposes that statements made by persons under investigation by the new Serious Fraud Office, the creation of which we all warmly welcome, should not be admissible in evidence against them, except where, in the case of prosecutions, there is failure to answer questions. I venture to ask the noble Earl the Minister why on earth this should be so. A matter 1284 which, as he pointed out in opening the debate, greatly troubled the committee, was the fragmentation of the investigation and prosecution processes. One department had one lot of powers; another had another lot of powers. Sometimes my colleagues and I thought they were rather like children saying, "I want my toy, you're not to have it". We hoped that ultimately the same powers would be accorded to whoever was making the investigations in question.
If Clause 2(8) stands as it is, there will be grave inconsistencies between the status of answers given to officials of the Serious Fraud Office and answers given to inspectors such as those at present operating under Sections 434 and 447 of the Companies Act where answers are expressly made admissible in evidence against their makers (that has been so in company law for as long as I can remember) and also, even more important, answers given in investigations under Sections 105 and 177 of the Financial Services Act 1986 where precisely the same position obtains.
Your Lordships will recall that Section 177 deals with the all-too-topical subject of insider dealing. Noble Lords blessed the granting of those powers of investigation and the consequences of the exercise of those powers when that Bill passed into law. It became an Act less than two years ago. I suggest to your Lordships most urgently that Clause 2(8) of the present Bill should be altered lest there be inconsistency between answers given as a result of investigations by the Serious Fraud Office and those other investigations to which I have just referred. The inconsistency seems to me at least to be wholly indefensible and to cut right across the philosophy upon which the creation of the Serious Fraud Office was built.
I do not propose to spend more time on the fraud sections of the Bill. There is much detail which could be discussed and there are, of course, other aspects; the rules of evidence, jury challenge and other matters which have been touched upon. These will be discussed by others and I do not want to delay the House.
I should like to leave the subject of fraud and pass to another topic altogether, although I believe my noble and learned friends the Lord Chief Justice and the Lord Advocate propose to deal with it, more fully no doubt than I shall be able to do in a few minutes.
Clause 29 of the Bill has already been mentioned. I was one of those, as, I think, were all the other Law Lords, who joined forces with the noble Lord, Lord Hutchinson of Lullington, when he put forward an amendment and defeated the Government when this clause last appeared. I see no reason to change the view which then appealed to the majority of your Lordships.
Clause 29 is not the right way of dealing with the problem of sentences which are said to be inadequate. The right way is different from that suggested by my noble and learned friend Lord Elwyn-Jones and by the noble Lord, Lord Harris of Greenwich. I suggest the right way is to go back and to give the Court of Appeal the power to review all sentences, whether upwards or downwards, whenever there is an appeal to that court, and where there is not an appeal, to give the Attorney-General power—not because he is in charge of the prosecution process but because he has a much wider 1285 duty as Attorney-General (as no one knows better than my noble and learned friend Lord Elwyn-Jones who held that office for so long)—subject to the leave of the Court of Appeal, to refer specific sentences in specific cases so that if those sentences are wrong they can be put right.
I urge this not in any way to stop criticism, whether fair or unfair, of judges. Judges are no more immune from criticism than anybody else. Such criticism is an occupational hazard of modern judicial life, however unpleasant it may be to endure it, and that criticism may be wholly unjustified. My object is a simple one: it is to secure the right sentence in the right case in the right way from the right court which is the Criminal Division of the Court of Appeal.
Another omission in the Bill—though I thought from something I read in the press some time ago that such an omission would not occur—is the failure yet again to give the Court of Appeal power to order a new trial in cases other than those where there is fresh evidence. This power exists in most other Commonwealth countries and, although your Lordships may not know this, it exists in Scotland. Unhappily, there are cases where the evidence against a defendant is extremely strong but where judges do make mistakes. We have all made mistakes, sometimes bad mistakes in our time. With something like 1,500 people trying cases in the Crown Courts up and down the country, it is quite impossible that mistakes will not happen from time to time. Why should a defendant, against whom there really is strong evidence and who was plainly rightly convicted, escape simply because the judge has made a mistake?
The Bill contains much on which lengthy comment could be made. Many of your Lordships are waiting to speak and I shall not lengthen my own speech. As a whole, I respectfully commend the Bill to your Lordships, and I urge that it should find its place, particularly the first three parts and those parts associated with them, on the statute book as soon as possible.
§ 6.23 p.m.
§ Lord Irvine of Lairg
My Lords, I feel sure that in this House there will be no dispute that every criminal statute should be judged by whether it will promote or hinder the development by the courts of a rational sentencing process. In practice, the hardest task for the judge in a criminal trial is not the law nor the conduct of the trial itself but the duty to sentence when the jury convicts. The sentencer operates in a statutory framework. It is massively complex and he is not responsible for it. But it is the judge who is blamed if the sentence is thought wrong. He works in a growth industry. In 1980, 55,594 cases were committed for trial to the Crown Court: in 1985, 83,898—an increase of over 50 per cent. in a five-year period. The workload requires many part-time judges, so consistency of approach can be harder to achieve.
Delays due to the workload bring demands for speedier disposal of cases. If heeded too much, the quality of justice can suffer. All this growth is accompanied by higher and often conflicting expectations by the public. Concern over the continuing rise in the prison population is matched by demands for tougher sentences for particular crimes. 1286 The sentencer is unlike most other critical decision-makers in the criminal justice system. He operates in full view of the media. His sentences are as likely to be censured as too low, as too high. Press criticism indeed is often ill-informed. But I think it is often no more useful to bewail unfairness of the press than to rail about the weather.
All this neither judges nor legislators can much affect, but that cannot be said of one major source of the sentencer's workaday problems: the ever-increasing length, complexity and, it may be, doubtful rationality of the rules governing how long people stay in prison. In recent years the Court of Appeal has taken a much more active role in shaping sentencing policy. This has been under the leadership of the noble and learned Lord, Lord Lane, to whose contribution to this debate I look forward. This more active role has been mainly through the growth and refinement of guideline decisions. These spell out the proper approach to particular types of offences or the use of particular sentencing powers.
Scarcely a year passes, however, without some new statute that has a significant impact on sentencing. So no matter how hard the courts try it is just not possible for the courts to fashion a wholly rational process out of the framework that has grown statute after statute and become disjointed and sometimes inevitably irrational when put into practice.
Some of this is as a result of the rules about remission; the rules about credit against sentence for the time spent in custody awaiting trial, and the rules about parole. I am particularly glad that I am to be followed by the noble Lord, Lord Windlesham, whose work as chairman of the Parole Board is held in such high regard. I hope that he will accept that my references to parole are in the context of the operation of the sentencing system as a whole and are in no way a criticism of the excellent way in which the Parole Board operates the system it has been given to administer.
I turn to some ways in which the whole sentencing system works. It may amaze, but it is the fact, that with offenders who have been on bail before trial there is normally no effective difference between sentences of nine, or 12, or 15 or 18 months—each will result in six months in prison in the great majority of cases. Let us take another case. One offender is in custody on remand for six months awaiting trial. Another is on bail during the same period awaiting trial for the very same offence. Both are convicted; both get 18 months and both will probably come out after six months, but the offender who did not have bail will have been in custody for 12 months and the other for only six.
Let us take yet another case of two offenders who have each been in custody for two months before trial and sentence. One gets 12 months and the other two years—double. Both will probably come out of prison on parole after six months.
Every day the sentencing judge solemnly passes sentences that are not remotely related to what will actually happen. So far as concerns the majority of custodial sentences passed by the Crown Court, the relationship between the sentence of the court and the sentence actually served is in fact so tenuous that debates about how to harmonise the decisions of 1287 sentencing judges are not realistic. All this results from the interaction of different statutory rules as they have appeared on the statute book. Today I state facts only and do not attempt to offer any controversial solutions. The Criminal Justice Bill will make its own weighty contribution to the work of sentencers. Clauses 48 to 59 deal with confiscation of the proceeds of crime. These clauses cover nearly 19 pages. They closely resemble but do not duplicate the Drug Trafficking Offences Act 1986. Drug trafficking is among the most evil of crimes. We all agree that the courts should have the strongest powers to trace and to confiscate its proceeds. But though the code in the Criminal Justice Bill is based on the Drug Trafficking Offences Act, the sentencer would err if he thought that both codes were identical. Quite apart from the differences in detail that lay traps for the sentencer, there are surprising differences of substance.
The elaborate provisions of the Drug Trafficking Offences Act are mandatory. Where there is a conviction for a drug trafficking offence the court cannot proceed, straight away, to sentence. First, the court must decide whether he has benefited from drug trafficking. If he has, the court has to assess the value of his proceeds; and then how much is capable of being realised in practice. This will be a time-consuming process. And all this must be before sentence.
Not so with the Criminal Justice Bill. It deals with crimes other than drug trafficking. Under the Bill, as the noble Earl, Lord Caithness, observed, the court may, not must, make a confiscation order if it considers that he has benefited from any offence before the court. So the court has a discretion in every case whether it is worth the effort and cannot make a confiscation order unless for at least £10,000. Not so with the Drug Trafficking Offences Act. The court has no choice. Its procedures must be applied as much to the street corner pusher, living in a squat on supplementary benefit, as to the major suppliers. But under the Criminal Justice Bill the courts will be allowed to confine their attention to the bigger fish. I wonder whether it would have been better to leave it to the discretion of the courts in drug trafficking cases too, with benefit to the size of the remand population.
The drug trafficker, big or small, cannot be sentenced until the court has worked through, to the end, the process of determining the amount of the confiscation order. This is not so with the Criminal Justice Bill. As I read Clause 49, the court can send to prison immediately, and work out the confiscation order at greater leisure; and this though the confiscation order under the Criminal Justice Bill is a simpler task, because the order can be made only in relation to offences actually before the court. This is not so with the Drug Trafficking Offences Act. The court must look not just to the fruits of the offences before the court. It must examine the drug trafficker's whole life history to determine whether he has at any time benefited from trafficking. So, in applying these apparently very similar provisions the sentencer must remember that, though there is much that is much the same, there is much that is very different.
Sound sentencing legislation should surely answer three requirements: first, that it be as short and simple 1288 as possible and not needlessly complex; secondly, that it be logical, so that the various steps the sentencer may take can be explained rationally; and, thirdly, that the sentences the judges mete out are credible to the public because they are sufficiently related to what will actually happen in practice.
When the dust has settled on the issues in this Bill—the issues that are thought so controversial—Parliament may one day turn to the larger, the all-pervasive, the infinitely more important task of fashioning a rational framework for sentencing, a framework which would carry the support of Parliament, the courts and, above all, the public.
§ 6.33 p.m.
§ Lord Windlesham
My Lords, we have just listened to a notable maiden speech, no less, I may say, than we had anticipated in view of the high reputation which preceded the noble Lord, Lord Irvine of Lairg, before he came to this House. As a leading counsel, he speaks with knowledge of the law and of the courts too in which he sits as a recorder. Some noble and learned Lords who have already spoken have known the noble Lord as an advocate. Now, in this wider assembly, we share that experience. We admire his eloquence and, on this side of the House, we have had a foretaste of his quality as an adversary. We all greatly look forward to hearing him again in the future.
Although no part of this Bill relates to the early release of prisoners on licence, I should declare an interest as chairman of the Parole Board since I was appointed to that office by the Home Secretary. While independent of the Home Office this vantage point has enabled me to observe the strange and idiosyncratic ways in which criminal justice Bills are prepared.
The original commitment was to place the criminal injuries compensation scheme on a statutory basis, so honouring an undertaking given in this House to the noble Lord, Lord Allen of Abbeydale, and rightly given too, in view of the substantial sums of public money which were being paid out in compensation for criminal injuries on a discretionary basis without any specific parliamentary authority. Then came the report, only a little more than a year ago—some 15 months ago—of the committee of the noble and learned Lord, Lord Roskill, on fraud trials. It contained 112 recommendations in all. That report was perhaps the most important and urgent item that came forward for inclusion in a criminal justice Bill.
But once the prospect of a Bill in the current Session became a strong possibility, then in an indefinable way the opportunity to legislate created its own momentum. Consultative documents appeared, followed by a White Paper. Support for varying subjects waxed and waned. Mediation and reparation were strongly fancied at one time, something close to the heart of the previous Home Secretary, although not in the event finding a place in the Bill. At the same time accretions began to build up; the sentencing powers of the courts, jury challenges, confiscation of the proceeds of highly profitable crimes, and the most vexed of all issues, the so-called lenient sentences imposed in the Crown Court.
Each of these provisions was included in response to events, or the mood of the public—or what was seen as the mood of the public—rather than as a result of 1289 systematic review leading to proposals for reform. The end-product is before us today. It is the largest Bill to be presented to Parliament in this Session—136 clauses and 13 sometimes lengthy schedules. The lack of a theme is, of course, a constant lament when criminal justice Bills are introduced. The noble Lord, Lord Harris of Greenwich, referred to them as ragbags. So they may be, but the merit of the system of compilation which I have just described is that a Bill of this kind represents a parliamentary response to shifting public attitudes and opinions. There is thus democratic virtue on these grounds, but at the cost of adding still further to the piecemeal nature of the system of criminal justice.
The most solid and carefully considered part of the Bill without question is the first 20 clauses or so containing proposals for the control of financial or commercial fraud, about which the noble and learned Lord, Lord Roskill, has already spoken. For many years, until not so long ago, fraud was the Cinderella of the criminal justice process, receiving only limited police, prosecutorial or media interest. This has now changed, not just in this country but in other developed countries as well, although it is curious that it should ever have been so. The recorded losses involved are far greater than those from burglary, theft or robbery. Fraud recorded by the Metropolitan City of London Fraud Squad represents about three times the total cost of all property crimes in London, and is not far off the combined annual cost of reported thefts, burglaries and robberies throughout England and Wales. The sheer scale and ramifications of the largest frauds are vividly described in the Roskill report.
Fraud is often elusive, hard to define and hard to recognise. Most commercial transactions can be conducted honestly or they can be conducted dishonestly; the dividing lines are not always clear. Financial frauds can be entwined with legitimate trading activities, or they may be wholly fraudulent, like VAT or revenue frauds. Banking frauds may involve ingenious manipulation of accounts and duplicate accounts. Marine frauds may lead to the same cargo being sold many times over by forged bills of lading or other documents. Phoney companies may obtain goods on credit from genuine suppliers; phoney suppliers may sell non-existent goods to genuine buyers. Throughout, the difficulties of investigation are as great as bringing cases before the courts and proving that criminal offences have been committed.
In the Roskill report emphasis was rightly placed on investigation as well as on alternative procedures for trial where there was evidence that a criminal offence might have been committed. This emphasis is reflected in the Bill in the proposal to establish a new body, the Serious Fraud Office. Some kind of overall co-ordinating agency is essential if the most serious and complex frauds are to be investigated and prosecuted speedily and effectively.
There is a paradox in that, while petty frauds which are committed clumsily, perhaps realising only relatively minor proceeds, are likely to be detected and punished, it is all too probable that the largest and most skilfully executed crimes escape punishment.
The Bill envisages that the Serious Fraud Office should be responsible to the Attorney-General. Its composition and staffing, I suspect, will have been 1290 subject to a certain amount of horse-trading within Whitehall. I anticipate that the staff—perhaps the Minister can confirm this—will be drawn from various parts of Whitehall, supplemented by lawyers, accountants and people with experience of companies legislation from outside.
Three questions arise. First, what is the relationship of the new body to be with the police? This could be of crucial importance. Will police officers be an integral part of the organisation, or will they be separate? Secondly, will the Serious Fraud Office include some of the functions of the Fraud Commission, which was proposed by the Roskill committee but is not pursued in the Bill, for monitoring and generally chasing up progress in major fraud cases? Above all, are Ministers satisfied that the deeply ingrained attitudes and habits which exist in government departments and the enforcement agencies can be overcome to ensure that they pull together? We heard the noble and learned Lord, Lord Roskill, speak of the fragmentation he noted when evidence was given to his committee.
Let me now turn to the matter of lenient sentences. I am sorry to say to the noble Lord the Minister from these Benches that I too regret Clause 29 is in the Bill. Despite all that has been said on the subject since it was last debated, and roundly defeated on the Prosecution of Offences Bill in 1985, the proposal to refer to the Court of Appeal individual cases where there has been an outcry against the sentence still represents an unsatisfactory and, I fear, muddled compromise.
We are on thin ice here, where the powers and the responsibility of the executive bear on the powers and the responsibility of the independent judiciary. Like other noble Lords, I await the contribution of the Lord Chief Justice and of the noble and learned Lord, Lord Ackner, with keen anticipation.
Speaking only for myself, I see two main grounds for objection. I do not like—and I wonder whether former Law Officers like—the bringing in of the Attorney-General to rule on which sentences passed in the Crown Court raise "a question of public importance". It is hard to avoid the conclusion that the test of public importance will be the volume and intensity of public protest. The arrangement is likely to prove capricious and unpredictable in operation, introducing non-judicial yardsticks of leniency or severity resting on some unknown, or unknowable, process of interpreting public feeling. Nor do I think it probable that a general statement of principle by the Court of Appeal on what the sentence ought to have been, but leaving the actual sentence in the case referred to it undisturbed, will have the intended effect of mollifying public anxiety.
No, my Lords, if the Government are convinced that there is a real and deep-seated public dissatisfaction with the present practice, then they should ask Parliament to change the law as it applies to all convicted and sentenced offenders, irrespective of public outcry. If they are not persuaded that the need for a change outweighs the objections outlined by the Minister in his opening speech this afternoon, then I think they should leave the matter alone.
As your Lordships are aware, there is already a right of appeal against sentence by the defence if it believes 1291 that the sentence is too high. If the Government are really convinced that a change is needed—I do not advocate it myself—then surely the proper course is to broaden the right of appeal into a two-way process, exercisable with leave of the Court of Appeal, if the prosecution believes that the sentence passed is manifestly out of line with normal sentencing practice. In this way, there would be a clear-cut and rationally defensible mechanism for upward adjustment in the interests of consistency when the sentence is too low, in exactly the same way as there is for reduction when the sentence is too high.
§ 6.50 p.m.
§ Lord Hooson
My Lords, may I first add to the congratulations expressed by the noble Lord, Lord Windlesham, to the noble Lord, Lord Irvine of Lairg, on his notable maiden speech. While keeping within the confines of the convention of not being controversial, he showed the power of penetrating criticism. And rhetorically I am bound to ask the question: if he is as good as this when he is being non-controversial, what will he be like when he is controversial? We look forward very much to hearing the noble Lord again, and very soon.
I should like to apologise to your Lordships for the fact that I have to chair an important meeting in a different part of this building and I shall have to leave your Lordships' House for a certain time. I apologise to those speakers whose contributions I shall not be able to hear but I hope to return in good time for the concluding stages of the debate.
I wish to confine myself, as I support a good many things in this Bill, to something to which I object very much. That is contained in Clause 89. I refer to the abolition of the right of peremptory challenge by the defence. I do not suppose that in 99 cases out of 100 or even in 999 cases out of a thousand it matters very much whether the defence have a right to peremptory challenge or not, but there are certain cases where I think it matters a very great deal.
It so happens, as the noble and learned Lord, Lord Elwyn-Jones, has already said, that this right of challenge is as old as the right to trial by jury. It was in the early 16th century that the right of challenge was restricted to 20 challenges from, I think, something like 35. It is only in our age that the right of challenge has been reduced to the present number of three. In saying that I am totally opposed to its abolition, let me add that in 37 years' practising at the Bar, I have very rarely used the right of challenge.
I was brought up on a circuit—the noble and learned Lords, Lord Edmund-Davies and Lord Elwyn-Jones, were my mentors—where it was thought tactically unwise to challenge without cause unless one was absolutely certain it was necessary. I always told my clients that he or she had the right to challenge but I would let them use that right themselves. They very rarely did, and I can only recollect using the power myself about three or four times. Nevertheless, I think this is a very important right.
The jury system was not the product of logical consideration. It was put together in a haphazard way; it evolved. I have been reminding myself over the weekend and today of that remarkable Hamlyn 1292 Lecture given by the noble and learned Lord, Lord Devlin, Trial by Jury. I should like to quote two or three passages from the book. He said at page 151:Is there then more than one sort of justice? Yes: the justice of the case is the best compromise that can be obtained between the demands of the law and judgment on the merits. Those two points are always separated by some distance, long or short, and justice can be brought to rest anywhere between them; almost inevitably it will be nearer the one than the other".He goes on to say at page 159:For more than seven out of the eight centuries during which the judges of the common law have administered justice in this country, trial by jury ensured that Englishmen got the sort of justice they liked and not the sort of justice that the government or the lawyers or any body of experts thought was good for them".Having given those quotations, I ask myself the question: is the right of peremptory challenge an important matter when it comes to the selection of a jury? I think that it is. I believe it is absolutely right, for example, that if a black man is on trial and wants to object to certain white people being on the jury, he can make the objection without stating what it is. Likewise, if there is a woman on trial who objects to the fact that it is an all-male jury, she can object to some of the men on the jury in the hope of getting women instead.
There are many circumstances that arise. I have sometimes looked at people coming into the jury box and thought I would very much like to object to some of them. As a matter of tactics, as I have said, I have not done so, but I believe that, particularly in the political case—the one that goes to prove a point—trial by jury is not confined to trying the case entirely according to law. It goes to the merits.
Let me illustrate my argument by reference to the trial of William Penn and his co-defendant in 1670. William Penn's trial was a landmark in the development of our legal history. I have no doubt whatsoever that had William Penn been tried in your Lordships' House at that time, he would have been convicted out of hand, Likewise, had he been tried in the House of Commons at that time he would have been convicted out of hand. I believe the situation would have been the same had he been tried by any of Her Majesty's judges at the time. I am quite certain that in order to get Mr. Bushell on to that jury, and so on, it was essential to have trial by jury. It established certain rights in this country. I believe that the right of peremptory challenge was important then, and it is important today.
In opening the debate, the noble Earl said that in modern conditions this kind of safeguard is no longer required. I respectfully disagree. There is the odd case where the right of challenge is very important. If we do not have it, we shall go down the American road to challenge to cause. We will have the kind of "voir dire" that operates in the United States where weeks are sometimes spent arguing as to who should or should not be on the jury, investigating their backgrounds, and so on. That kind of development has not happened in this country because the judges have been well aware of the right of peremptory challenge. Abolish that right, and which direction will we take in this country?
It is said that there has been misuse of the right of peremptory challenge. I have no doubt that there are some cases where misuse (if that is the right word) has 1293 taken place. Obviously it is unwise, because the results of research do not bear out the efficacy of jury challenge.
Among modern cases, there was alleged misuse of the peremptory right of challenge in the Cyprus spy trial. It so happens that I was involved as one of the defence counsel in that trial, and because of my upbringing and background at the Bar, I happened to be the only leading counsel in the case for the defence who did not challenge any juror. However, I totally refute the suggestion that there was any misuse of the right of peremptory challenge in that case.
It so happened that I was separately instructed. Six very distinguished leaders at the Bar—one of them was made a High Court judge almost immediately the case was over—met together, so it is said, and decided to object to certain members of the jury.
Let me give your Lordships the background against which they made their decisions. First, the case was to last for six months, so the very distinguished judge—Mr. Justice Stocker as he then was and Lord Justice Stocker as he is now—quite rightly, in my view, asked the members of the jury who had been empanelled whether they had any particular personal problems. It so happened that there were three juries empanelled in that case. One had to be dismissed for some reason or another; at the end of the first prosecution opening the prosecution made a mistake and the second jury had to be dismissed, and a third jury had to be empanelled. As I recollect, I was only there for the first jury, but over 60 members of the panel that had been assembled were exempted by the judge in the exercise of discretion.
Let me give your Lordships examples of grounds. First, people were going on holiday—this was in April. Mothers, or fathers as the case may be, in the jury said that they had booked their holiday to take into account their children. Holidays had already been booked and paid for. The learned judge quite rightly exempted them. Other people said, "I am a one-man business. I shall be ruined or made bankrupt if I am asked to stay on". So those people were exempted. There were many such cases. For example, one person said, "I am a key engineer in a certain firm". The judge asked the defence, "Do you object to him being released?" and received the reply "No". In that way between 60 and 70 people were exempted.
Once one has reached that stage one asks oneself, where is random selection? In that case one was left with the very young who in many cases had secure jobs or were unemployed and with retired people. Therefore there was no random selection. If one envisages that in future there will be cases of that kind and of that length, then is a judge not to have discretion to exempt people? It would be an impossible situation. He is bound to have discretion and it is bound to be used. It is right and sensible that it should be so.
The actual objections in that case were apparently 18 in all, because my colleagues had determined that, as they were conducting a case for young men (the average age was between 19 and 22, with one aged 30), it would be better to have a young jury of contemporaries rather than an old jury. That was their choice. The jury that was finally empanelled—and I 1294 checked this up today with the Old Bailey—consisted of people whose ages varied between 35 and 18. Only one of them was unemployed.
There was a suggestion made by one learned judge in the Old Bailey, who should have known better, that the aim was to have a jury of unemployed people. Quite the contrary, only one member of the jury was unemployed. They were all highly intelligent people, and whether one was with the defence or the prosecution, everyone agreed that that jury had followed the proceedings with a great deal of intelligence and discrimination.
The attacks that were made on that case—that is, on the exercise of the power of peremptory challenge—were an insult to the jury and to everyone who took part in it. It so happens that after the trial there was a report by Mr. David Calcutt, who is now the distinguished head of a college at Cambridge, which reviewed the evidence. I quote from his report at paragraph 5.44:I have already concluded earlier in this chapter that the custody of the eight servicemen was, for part of the time, unlawful and that even after the servicemen had been lawfully arrested on holding charges their continued custody was at least improper".He concluded at paragraph 5.51:I believe that this pressure [due to the unlawful custody] was responsible for some of the demonstrably inaccurate material which appeared in the statements made by the eight servicemen during the interviews".Having been involved in many trials in my life, I am bound to say that I believe that most juries would have acquitted in that case. I think that all juries would have acquitted some of the accused. I think that to use this case as an attack on the right to peremptory challenge is entirely wrong. If anything, it was a justification because of the lack of random selection which the circumstances of the trial had imposed. In fact it was a justification for the right in question to remain.
I also want to refer to research on this very point which has continued and which is referred to today in the article in The Times by Mr. Bernard Levin. The noble and learned Lord, Lord Elwyn-Jones, has already quoted from it today in your Lordships' House. It shows that generally speaking a right to peremptory challenge, if misused, tends to rebound and that jurors object to the right being exercised on fellow jurors unless there is very good reason for it. I hope that your Lordships will throw out this clause of the Bill.
§ 7.6 p.m.
§ Lord Lane
My Lords, it was good to hear the wisdom of Caithness matched by that of Sutherland. I too should like to pay a tribute to the quality of the speech of the noble Lord, Lord Irvine, and the eloquence with which it was expressed. It augurs well for the future of your Lordships' House.
I should like to raise just two matters with regard to this Bill, one of which appears in the Bill while the other does not. The first relates to Clause 29. Judges operate in court in the glare of publicity, and it is right that they should do so. It is very conducive to good behaviour on the Bench. However, despite what the media say, judges are human and human beings make mistakes. If mistakes are made it is right that judges should be criticised accordingly, but I suggest that in fairness such criticism should be subject to constraints.
1295 First of all, the criticism should be based on an accurate account of the facts, which it very seldom is. Secondly, perhaps I may suggest that, where the criticism is justified by the facts, there should be an opportunity for the court to put the matter right. By skilful manipulation of the facts it is all too easy to undermine public confidence in the judges, and once public confidence has been so undermined it may take a generation to restore.
Nothing is easier than to criticise a sentence imposed by a judge. As the noble Lord, Lord Irvine, has already said so cogently, sentencing consists in trying to reconcile a number of totally irreconcilable facets. The judge gets very little help in this difficult matter. On a verdict of guilty being returned, prosecuting counsel sits down with a smug look on his face and there is the end of the adversarial system. The judge is out on his own doing the best he can with the assistance of defending counsel, whose prime obligation, subject to his duties to the court, is to do the very best he can for his client. The judge is left to weave his way through the maze of legislation which now surrounds sentences to try to find the correct solution to the problem.
I suggest that it is high time the prosecution started to play a part in the sentencing process by directing the judge to such statutory provisions as may guide him in his sentencing task and to such guidelines laid down by the Court of Appeal as may assist him in non-statutory parts of his duty.
The judge in the Crown Court who passes too severe a sentence knows that the matter will be put right in the Court of Appeal. If he passes what is thought to be too lenient a sentence, and if the case is sufficiently notorious, the media, as has been recently demonstrated, will have a field day. There is no method of correcting misstatements of fact by the media, and no method of putting right what may on examination prove to be a glaring miscarriage of justice. It is the right of the public to have over-leniency corrected just as it is the right of a defendant to be able to appeal against too harsh a penalty.
If I may respectfully say so, the Court of Appeal should have the power to increase sentences in appropriate cases. Most of the cases which excite the attention of the newspapers are found on close examination to be correct in principle, though possibly badly expressed in form. Some are wrong in principle and those should be corrected in order to prevent the very erosion of confidence which I mentioned earlier.
The present Clause 29 has the inestimable disadvantage of providing the worst of both worlds. It will draw attention to faults without remedying them. It will add nothing to the powers which the court already has. We do not require Clause 29 to give us the power to make suggestions or to issue guidelines—call them what you will. We do not require Clause 29 to enable us to tell the errant judge that he has gone wrong. We do that already at various levels according to the level at which the allegedly wrong sentence was expressed. It will gain nothing by being done in public, as it is suggested that it should be, rather than in private as it is now.
The suggestion that the Judicial Studies Board should have some statutory authority fills me with horror. It already collates and publishes the necessary 1296 decisions and there is no need to give it any statutory power to do that. Clause 29 will do nothing to show the public that a miscarriage of justice has been put right for the simple reason that it has not been put right. Such a power might indeed involve the prosecution in the sentencing process; so much the better. It is high time that they took part in that process. However, that does not mean that they would demand such and such a penalty but that they would provide assistance to the judge which at the moment he must provide, not always successfully, from his own resources.
In other common law jurisdictions the power exists without any of the dire consequences which it has been suggested may result from the power that I have suggested. The power exists in Australia, Canada and New Zealand, to mention only three of the leading Commonwealth countries. They cannot understand why we do not have a similar power. "What happens", they ask, "if a judge in your country has a sudden rush of blood to the head and fines a multiple rapist one dollar? What can you do?" The answer is that we can do nothing. The sentence has been passed and that is the end of the matter. In short, I should like to suggest that the courts be given the power to increase sentences. Failing that, please do not saddle us with Clause 29. It is better to have nothing than to have Clause 29.
I shall mention one other matter very briefly; that is, the question of ordering a retrial. At the moment, as your Lordships know, the Court of Appeal Criminal Division can only order a fresh trial when fresh evidence has become available which renders the verdict at the original trial either unsafe or unsatisfactory. If there has been some irregularity at the trial, the Court of Appeal has the choice of either allowing the appeal and quashing the sentence or of applying the proviso to Section 2(1) of the Criminal Appeal Act 1968, which provides:Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred".In cases where the irregularity has been of a formal nature on the fringes of the matter, that is enough to solve the difficulty. However, there are cases, as has already been mentioned to your Lordships, when a judge perhaps in an uncertain area of law has given a wrong direction to the jury—for example, on the vexed question of duress. The Court of Appeal may think that the jury would perhaps have convicted had the judge directed it correctly, but it is impossible to know for certain whether it would have done so. In those circumstances it seems contrary to both justice and good sense to allow the defendant to go free without further ado. Once again it is a power which most other common law jurisdictions seem to have. We have been told about Scotland and I believe that it also exists in Northern Ireland. The Law Commission thinks that it is a good idea that the right should be existent in the courts here and so do all the judges to whom I have mentioned the matter. I commend the idea to your Lordships' House.
§ 7.19 p.m.
§ Lord Campbell of Alloway
My Lords, as is the case with other noble Lords, I also pay tribute to the noble 1297 Lord, Lord Irvine of Lairg. He is a fair-minded and able opponent in the courts, as I know to my cost, and I look forward, as do other noble Lords, to hearing him on many other occasions in your Lordships' House. It is a rare privilege to follow the noble and learned Lord, Lord Lane, who speaks from the depths of his experience and, as I understand it, on behalf of the majority of the judiciary. The hope must be that your Lordships having had the benefit of his advice will at least be disposed to heed it.
As to this Bill, it is not a Bill drafted or designed to deal with overcrowding in prisons. I accept that the noble and learned Lord, Lord Elwyn-Jones, thinks that it should be—that is fair enough—and so indeed does the noble Lord, Lord Harris of Greenwich. Overcrowding in prisons is a very important subject which has been neglected by administration after administration of either party for far too many years. But it is at least a subject in which this Administration have sought to take an initiative.
This Bill is really the great reform Bill affecting criminal procedure of this century. It resets the balance in equilibrium, which it is not now in, between the interests of the state and those of the accused. Inevitably, much new ground is broken, so—also inevitably—the plethora of novel principles raises sensitive issues; issues which have already attracted public concern, and rightly so, in Parliament, in the press and in the media.
The first of those issues is, assuredly, over-lenient sentencing. Here I agree, as a mere member of the Bar and a recorder, with the views that have been expressed by the noble and learned Lord the Lord Chief Justice, and I have already left in the appropriate office an amendment that seeks to implement the views that the Lord Chief Justice has expressed. The second matter which attracts public concern is child molestation. Does Clause 21 go quite far enough?
The third matter in the Bill which attracts public concern, certainly with the Heysel fiasco recently—and there is no criticism of the courts; it is a criticism of the law—is avoiding conflicts between the judiciary and the executive.
Adjustments may well be required under the proposed scheme, which I wholly endorse, to avoid these.
But there are two matters of omission which are also of public concern. The first is jury nobbling—a grave menace today—of which the Bill takes no note. The other is the absence of the power to order a retrial, of which the noble and learned Lord, Lord Lane, has spoken. Again I have left for the consideration of your Lordships in Committee an amendment which would give effect to that power for the reasons which have been given by the Lord Chief Justice and which require no further elaboration from me.
As to over-lenient sentencing, it is axiomatic that the courts, as the servants of society, may not be isolated from public opinion. It is apparent that the only effective corrective lies within the province of the judiciary and that means a real right of appeal against sentence which has an immediate impact both on the sentence and on the offender. The time has long passed when Parliament, with certain safeguards, ought to have afforded an appeal to the Court of Appeal against 1298 sentence as a corrective where apparent leniency on certain occasions offends public opinion.
As has been said, Clause 29, as supplemental to the extant system of guidelines, has absolutely nothing to offer. It is a paper placebo for public concern. It in no way forestalls any damage to public confidence, such as my noble friend the Minister referred to. It is a meretricious nonsense, it does nothing, it is totally indefensible and it was defeated in principle by your Lordships by 140 votes to 98 not so very long ago. So why have we got it back again? Perhaps my noble friend the Minister will be able to tell us. I listened with some care to his justification for the clause, but with the greatest respect to my noble friend I could not follow the logic. There has to be some logic in reintroducing this clause, which, in principle, has already been defeated against a strong two-line whip by 140 to 98.
Jury nobbling gnaws at the marrow of justice. Since the armed robbery trials of the 'sixties, it has infected the jury system, at all events in this type of crime. Apart from the mole juror there is the bribery, there are the threats and there is the intimidation. The police lack the manpower and the resources to protect jurors. It is in this day and age wholly unacceptable that juries should be kept in isolation throughout the trial, from the time when they take their oath.
The introduction of majority verdicts in, I think, 1967 has not resolved the problem. This is all too evident from the goings on in the recent trial of Reed and Mitchell at the Old Bailey in the Brinks-Mat case. What is to be done? Frankly I do not know, but something has to be done. If it is right to retain the jury system—and I am a retentionist—abolition of the right of peremptory challenge without cause under Clause 89 must afford challenge for cause with inspection of the jury list under the Juries Act 1974, for that is the means by which you establish the cause. But it is suggested that the jury list should not be available to the defence.
If it is right to retain the system, I hope your Lordships will agree that it would be wrong to water down the majority from ten to two to, so to speak, eight to four, because if you dilute the essence you lose the substance. So, again, what is to be done? As a tentative suggestion, which is the best I can do, perhaps the right to a trial by jury might be withdrawn if during the trial aspects of jury nobbling are brought to the attention of the judge and established to his satisfaction, in which event the judge could not only discharge the jury but could order a retrial by judge alone or perhaps by a judge sitting with two magistrates.
It does not surprise me to see the noble Lord, Lord Mishcon, shaking his head; any of your Lordships would be entitled to a shake of the head whatever suggestions might be made. But this gap in the fence must be mended and mended soon by Parliament. It is a matter for your Lordships to consider how it should be done but not whether it should be done. I am fully conscious that any suggestion I may make as to how it is to be done would be subservient to better and more authoritative opinions. I hand to my noble friend the Minister as a thought for the day that perhaps some provision could be made in Part VII of 1299 the Bill to curb this menace which warps the due administration of justice.
As regards child molestation, is Clause 21 satisfactory? Ought not a video-taped interview with a child to be admissible at a trial, irrespective of whether the child gives evidence at the trial by video tape? In the case of very young children, ought there not to be some exemption from the hearsay rule which excludes immediate and spontaneous complaint, or the first account of the incident, as constituting corroboration? As regards corroboration, ought there not to be some amendment to the rule that one unsworn witness cannot corroborate another? In the case of assaults of this nature on a series of very young children who are able to give a credible account but unable to understand the nature of the oath, the child molester is quite simply put beyond the reach of the law.
Have we anything to learn from the case of Susie, aged three, where a conviction was obtained in the State of Colorado on video tape of an interview which afforded questioning safeguards for the defence? Susie was not fit to give evidence at the trial; she did not do so. However, under Colorado's exception to the hearsay rule, many of the child's statements would have been admitted and it was no doubt for that reason that counsel agreed and accepted that the video-taped interview should be admissible and agreed to participate in the questioning. I mention that matter to show that if one shifts the law to some degree on hearsay or indeed on corroboration one can produce a situation which may be more satisfactory. Of course one must exercise very great care in this sphere and it may be of interest to your Lordships to know that the accused in Susie's case later confessed his guilt and was shown to be a peristent child molester.
At all events, in this sphere the writings of Professor Glanville Williams and Mr. Spencer, both Cambridge dons, as well as others, have made an unassailable case on reform of the law governing these procedures.
I have gone on too long; I apologise and I shall not deal with the practical aspects of any appropriate amendments to extradition in order to avoid conflicts between the executive and the judiciary.
§ 7.35 p.m.
§ Baroness Phillips
My Lords, on these occasions I always feel that I should apologise for intervening on Bills which seem to be dealt with almost wholly by practitioners in the law, many of them of great standing and very learned. However, I think it is important to remember that many people have strong feelings about the issues raised in this Bill. Therefore, natural justice is something which we must also consider and this is the moment when we must consider it.
First of all, I add my congratulations to my noble friend on his maiden speech. It was a masterly speech and we shall all look forward to hearing him on subsequent occasions. One is very envious that he is able to speak so admirably.
I believe that we must consider this Bill in conjunction with the White Paper which was issued and which I have studied very carefully. I was also delighted to see that the Home Secretary has provided an introduction 1300 to his new working paper which gives me a starting point in this discussion. In the working paper we learn that the Government's objectives are to sustain the rule of law (no one can criticise that) by preventing crime wherever possible (and we all want that); by detecting the culprit when crimes are committed (we all want that); by convicting the guilty and acquitting the innocent, and by giving effect to the sentences or orders which are imposed.
My work lies in crime prevention. An important part of these objectives is deterrence. We can prevent crime not only from being repeated but sometimes from being committed if it is known that certain sanctions will follow upon an offence and that the sanctions will be operated. I am very glad to see a clause on firearms. There is also a reference to imitation firearms. Your Lordships will remember that I have raised that matter before. Many horrible crimes have been committed in which it has been found that the victim was challenged by what turned out to be an imitation firearm. That did not prevent their being badly beaten with something else subsequently and I am delighted that imitation firearms will now come into the category in which they always should have been.
Perhaps I may mention in passing that it is far too easy and getting easier for people to buy what are virtually offensive weapons. Shops are springing up all over the country which are called armoury shops or martial arts shops. They do not make any pretence of selling anything for sport; they are simply there to sell things which should not be available. A policeman once said to me, "Criminals do not buy things of that kind". No, but criminals will steal them. We should not put such things all in one place so that they can be obtained much more easily.
I noticed today that the EC (of which I am not very fond) is introducing a new law which will prevent the police intervening when firearms enter this country. I am delighted to see that the Home Secretary is to take action. The use of firearms is increasing dramatically. Someone recently said to me, "We do not want the police to be armed". I pointed out that I do not want criminals to be armed. My chances of being shot as an innocent bystander by a criminal are far greater than my chances of being shot by a policeman.
The victims of crimes get a small mention in this Bill. Victims get smaller mentions than offenders in practically all legislation. The Criminal Injuries Compensation Scheme is excellent. However, I should like to suggest that it is necessary, as is mentioned in the White Paper, to have further legislation concerning victim support schemes. Such schemes were initiated by people themselves and government have rather belatedly begun to give money to the schemes. I should like to ask the Minister whether the Government are giving as much to victim support schemes as they are giving to the National Association for the Care and Rehabilitation of Offenders; and if not, why not?
There is also a point contained in the working paper which does not seem to be mentioned in the Bill. That suggestion was, under the Criminal Injuries Compensation Scheme, to require a court to give reasons for not awarding compensation for injury, loss or damage caused to victims. Perhaps that matter is 1301 mentioned under some other clause and I shall be glad to know whether it can be included in the Bill.
I recently read a paper written by a barrister (which will impress some of your Lordshps) who echoed my own feelings about the treatment by the legal system of victims of vicious crimes. They are not represented in court and sometimes they do not even know of the hearing. My own grandson was brutally assaulted by three ruffians, who were caught, and only by ringing up my contacts as a magistrate was I able to ascertain anything about the proceedings at all. He did get some meagre compensation awarded. Of course, nothing would wipe out the terrible event from the boy's mind, as was subsequently shown.
The victim must be considered far more, not only in all our legislation but in the operation of our courts. People do not feel that they get justice. Whether we blame the judges, the system, or the courts, I am confronted day after day by people who do not feel that they get justice.
In so far as concerns the law relating to juries, I was interested to see that one noble and learned Lord went back to the 16th century. It was very interesting but of course, as I recall and unless I am greatly mistaken—and I am a historian—the sentences were slightly more savage in the 16th century than they are now. I am glad to see that the Government are tackling the idea of age. It has always seemed to be patent nonsense that if you are over 65 you have no intelligence and therefore cannot sit on a jury. In any case, these are the people with experience and background who will probably be some of the best jurors.
I should like to see the right to peremptory challenge abolished, although I am sure some noble and learned Lords will disagree, as they have done so far. A recent case has shown the importance of this. There is no doubt about the horrifying threatening and nobbling of the jury although it could not be effectually proved. But had they not been able to challenge the jury, they could not have gone on—as I see it, although perhaps I am too simple in this—until they got the jury they wanted.
I cannot see any reason why a woman would particularly want to challenge a jury just to get an all-women jury. When I sat as a magistrate I noticed that the defendants were always very worried when there were three women on the Bench because they knew they were going to get a tougher sentence than when they had three men, because we are a more practical sex—said she, without wishing to be sexist.
Then there is this famous Clause 29. There is no doubt there is a growing volume of complaints from the public concerning over-lenient sentences. I do not wish to bore your Lordships with repeating them but I should like to ask, is it right that a brutal rapist should receive only a three-year sentence? It cannot be right. Whether you blame the judge, the jury or the system, this is the kind of thing that unfortunately damages our judiciary. It is important to safeguard the interests of the ordinary citizen. If you do not punish offenders, at least withdraw them from the situation where they can repeat these horrific crimes.
I was very happy to see that the Master of the Rolls has come out in support of moves to let the prosecution appeal against sentences. I was also very 1302 heartened to hear the noble and learned Lord, Lord Lane, and also the noble Lord, Lord Windlesham, say what I am going to say; namely, that I am very much in favour of this and I think that the clause in question is not strong enough. I am hoping that I shall get some very distinguished support when I put down an amendment, which will have to be very carefully thought out, to deal with this particular point.
Appeal courts exist because judges sometimes make mistakes. As a magistrate, people could appeal against my decision, and rightly so, magistrates sit in threes, so there is less chance of us making a mistake. But if you sit alone you sit as God; there is no question about that. Therefore, some mistakes will be made. Quite rightly, where the convicted person thinks the sentence imposed is too severe he may appeal to a higher court. That court has power to reduce, but not increase, the sentence. That is something totally nonsensical. I listened with great care to the explanation from the noble Lord, Lord Hooson. It did not make me any wiser. I am sure that as this Bill goes through your Lordships' House some noble Lords will suggest that it is not consistent.
I remember that when we debated this matter in 1985 I had the distinction of being the only person who supported the noble and learned Lord the Lord Chancellor—as I pointed out, the only time I have been his bed-fellow, and that only in the nicest way. The Attorney-General would have been empowered to refer cases to the Court of Appeal for its opinion as to whether the correct sentence had been imposed, but not to give the Court of Appeal power to increase the sentence if it was considered to be too lenient. It seems to me that Clause 29 seeks to repeat this rather weak principle and I hope during the passage of the Bill to move an amendment strengthening this but carrying out what I hope is the Government's intention. The Attorney-General should be empowered to appeal to the Court of Appeal where he thinks the sentence is too lenient, but also the court should be empowered on such an appeal to increase, reduce or confirm the sentence so the accused cannot be said to have been in double jeopardy. I noticed with great interest that the noble Lord, Lord Windlesham, seemed to have some doubts about this matter, so I hope for his support too.
I believe that this Bill has a great deal to commend it and I hope that it will rapidly pass through Parliament before the Government decide to go to the country so that there will be something on the statute book which will show that the Government have a concern that natural justice shall be carried out.
§ 7.46 p.m.
§ Lord Hutchinson of Lullington
My Lords, it is always a great pleasure to follow the noble Baroness, Lady Phillips. Listening to her speech I was seriously considering whether to put down an amendment to give power to challenge benches of magistrates.
This is indeed the third major government Bill dealing with the criminal justice system to reach the House in the past three years. No one can say that the Government have been idle. They must be given credit at least for addressing a range of issues which have long required attention. As my noble friend Lord Harris has pointed out, they have failed utterly to grapple 1303 with the greatest social problem of our time; namely, the steadily growing cancer within the prison service.
It must also be said that the Police and Criminal Evidence Bill and the Public Order Bill were largely flawed before reaching this House by damaging political input. PACE, as we now call it, might so easily have been a great reforming Bill but it was spoilt in my opinion by the political wrangling in the other place. The passage of this Bill has been very different and I should like to pay tribute to the Minister, Mr. David Mellor, for the manner in which he and his colleague Mr. Hogg piloted this Bill through the Committee in the other place. It is largely due to their co-operative and receptive attitude to constructive criticism that the Bill is now an infinitely better one than it was when it was first printed. I am sure the noble Earl will adopt a similar conciliatory stance during Committee stage, that he will assist us all to understand and in understanding to improve some of the measures in this Bill which to me remain still almost incomprehensible.
There is surely too much crammed into the Bill. Part IX concerning extradition, Parts V and VI concerning confiscation and compensation might well have been Bills in themselves. I fear there are some "Carolean carbuncles," if I may call them that, on the face of the Bill—Clauses 89 and 29 and (dare I say it in the presence of the noble and learned Lord, Lord Roskill?) the Clauses in Part II, which if I understand them properly would seem to sweep away the safeguards surrounding hearsay evidence in criminal trials. Making the surrender of our nationals to foreign states in Part IX an executive act rather than a judicial process is a revolutionary proposal which I suggest demands the closest and the most careful attention of the House during Committee.
I must say a few words about Clause 89. In my view outright abolition of the right to peremptory challenge by one party to the trial will do untold harm to the administration of criminal law. I find it difficult to understand why the Government seek to make this clause some sort of virility symbol. Is it perhaps because they had to abandon the other abolition proposed by the Roskill Committee—that of jury trial itself, the abandonment of which was disapproved of so much by the noble and learned Lord, Lord Roskill, earlier today? Significantly, it was the Home Secretary himself who made a rare appearance in Committee and shepherded this clause through on a single vote majority.
I suggest that abolition would undermine public confidence in the impartiality of the courts. Participants in the criminal process will come to doubt whether trials are fair, unbiased, and are seen to be so. Abolition has its origin (dare I say it?) in one of the less well-written chapters in the Roskill report. Challenge of a juryman had no relevance to the subject under inquiry by that committee. In the evidence which is now reposing in the Public Record Office there is not one fact to support the idea that a single verdict in a fraud case has ever been affected by the use of the challenge; yet the committee seemed bent on recommending abolition. Indeed, the Commissioner of the Metropolitan Police in his evidence to the committee had no complaint on the trials of fraud 1304 cases in London, where challenges are more often used, achieving the remarkable conviction rate of no less than 90 per cent.
The report stated that the Attorney-General had arranged for a CPS survey to:obtain a basis of fact on which the Government can decide whether action is needed".Those facts have been obtained and they show, as we have heard, that the exercise of the challenge has had no effect whatever on the likelihood of conviction; nor has it distorted any trial; but the Government still suggest that action is needed. Surely we have reached a time in Parliament when we no longer legislate on hunch, anecdote, prejudice or fear, but on evidence and on reason.
The survey found as it did because the aim of the challenge is not to rig, to distort or to engineer but simply to ensure as far as possible a fair, unbiased and balanced jury. I ask the Minister: how on earth can that be wrong in principle? The Government insist on a highly intellectual concept—the sanctity of random choice. Randomness is merely a method of first selection. It may not achieve the result that we all want. If you choose plants at random for a mixed border you may, as every gardener knows, end up with flowers all of one colour.
If a defendant is faced with a jury of all women, all men, all young people, all old people, all people from one district or all people from one apparent class, how can it be wrong in principle if that defendant wishes to challenge some of those people for the jury? How can that be wrong? How can that be rigging the jury? That is what peremptory challenge is all about. It is challenge that makes an essential contribution to the perceived fairness and justice of our criminal procedure and that is why lawyers—the Law Society and the Criminal Bar Association, as they represent prosecuting lawyers and defending lawyers—are implacably against this abolition. It is because we know in all the trials in which we take part, on whichever side we are, that the peremptory challenge has an important part to play in the perceived justice which people expect to get in our courts when charged with a serious crime. Moreover, it gives the accused a final protection against the manipulation or the rigging of a jury. I suggest that it is the ultimate protection against the abuse of power.
As has already been said, challenge for cause will not do as it leads inevitably to embarrassing submissions in open court, the questioning of jurors, the using up of valuable time and the descent of the judge into the arena. If the exercise of this fundamental right has, in a few rare cases of multiple defendants, resulted in inconvenience and annoyance to the court surely in this imperfect world that is a very small price to pay.
I sincerely hope that every Member of this House will read Mr. Levin's brilliant article in The Times today and will appreciate—I hope I am right about this; the Minister will be the first to put me right if I am not—that this House not very long ago approved three challenges as being right in Scotland. I hope that this House, on a strictly non-political basis, will remove this carbuncle from the Bill.
I too welcome Part I of the Bill as implementing most of what is best in the Roskill report and I approve 1305 absolutely of the determined effort shown by the Government to deal with high level fraud. I particularly approve of the preparatory hearing, in Clauses 7 to 10 which incorporate so many of the reforms so long advanced by the Criminal Bar Association and put into writing as long ago as 1980. However, there are two matters which disturb me because we must not be carried away with our desire to clamp down on one type of crime.
I refer to the extent of the draconian powers given to the director of the Serious Fraud Office and his investigators: the power to interrogate any person that they reasonably believe has relevant information about any aspect of anyone else's affairs and to obtain possession of any document which appears to them relevant, under pain of prosecution and six months' imprisonment if he or she refuses to answer without reasonable excuse. Those are indeed draconian powers. There is no distinction between suspect and innocent witness. There is no caution, no right of silence and a complete discretion in the director. The only safeguard is that no statement so made may be used in evidence.
The House heard earlier this afternoon the noble and learned Lord, Lord Roskill, regarding that single safeguard as being unacceptable. Why on earth, he asked, is that in the Bill? Why is it there? I say to the noble and learned Lord, with the greatest respect, that, on the face of it, under these draconian powers it is the only safeguard that the innocent person being interrogated in that way will have. Moreover, as the noble and learned Lord knows more than anyone else, documents and information obtained under that interrogation, under power of imprisonment, will be admissible in law. That seems to raise matters at which we should look with care. Persons under that pressure, if they produce documents or give information, will not be able to say, "I do not wish to do that from the point of view of self-incrimination".
The justification for those powers and the extensive powers of search is, as we have already heard from the noble and learned Lord, that those powers are similar to those to be found in the Companies Act, the Financial Services Act, the Banking Bill, and so forth, but their extent would seem to be far wider under this Bill. There are grave dangers in a creeping extension into the criminal law of those powers of interrogation under threat. It would not be long before they are asked for in drug cases, rape cases, and so on.
A second matter for concern is the power given to the judge under Clause 9 to order the defence at the preliminary hearing to specify the facts upon which it proposes to rely at trial, with the sanction that the jury may infer guilt if the defence departs from or refuses to disclose those facts. That is another direct removal of the right of silence which requires careful examination in Committee.
Clauses 13 and 14 appear to abolish all the protection which an accused has in a criminal trial against the use of hearsay evidence. Hitherto, a rule of law has guaranteed the right of cross-examination which I suggest lies at the basis of the Anglo-American trial system. It now appears—I say "appears", because this part of the Bill reads at times more like an academic exercise than a practical guide to a fairer and 1306 more efficient criminal trial—that entries in diaries, passages in letters and copies of documents will all be evidence of the truth of what is written in them without the accused being able to cross-examine the person who made the document. It is to be left to the jury to assess the weight of what is in the document.
The Police and Criminal Evidence Act sensibly relaxed the rules about hearsay. Your Lordships will remember that we discussed that matter at length and strict safeguards were inserted into the Act. But under this Bill those safeguards, only recently debated in this House, are now suddenly to be repealed. Instead of a rule of law, we are to have the fragile and subjective discretion of the judge who will have an exclusory discretion, with the onus on the accused to make his case. The removal of that bulwark against wrongful conviction will also need the closest examination in Committee.
The noble and learned Lord, Lord Roskill, has said that he believes in the power being given to the judges. He also wants juries replaced in fraud cases and the tribunal to consist of a judge and City experts. There is a division of view. With the greatest respect, I prefer a jury and a rule of law to a judge's discretion. The noble and learned Lord also wants the power to increase sentences to be in the hands of the judges of the Court of Appeal. We have had the heavy artillery down here to blow Clause 29 out of the Bill, not to leave things as they are but instead to give the power to increase sentences to the Court of Appeal.
With all the logic of the highest judicial intellect, it has been argued that a lenient sentence should be put right just as an over-excessive one should. But that is not a matter of logic. Behind the sentence is a human being who has gone through the trauma of a trial, whose advocate has spoken, whose probation officer has made a report, whose witnesses have been called and whose judge has seen him over a period in the witness box. The judge decides to fine him. "Huh", says the Sun newspaper, "that is outrageous". Before long it is suggested that that case is to be taken to the Court of Appeal, and many months later that man, having been fined, returned to his home, his job and his family will be dragged up to London and there three judges, reading the papers, will decide that imprisonment was what ought to have been imposed. That is, as the noble Lord, Lord Windlesham, has called it, an adjustment upwards. That is the other side of the power to increase sentences. It is one which in due course I shall urge the House to reject.
Finally, I shall deal with Part IX. It relates to extradition, which has not yet been mentioned. Present procedures under which nationals are surrendered to foreign states, other than the Commonwealth, have become exceedingly complex and tied into meticulous demands for precise observance of procedural rules. But those requirements have an honourable history. It is the determination not to subject our nationals to the trauma of arrest, incarceration, removal and eventual trial under a foreign jurisprudence without our courts ensuring that there is sufficent evidence to establish a prima facie case of guilt; in other words, a judicial examination of the law and the evidence.
Our neighbours in Europe, with a wholly different legal system and approach, have become disenchanted 1307 with the difficulties of trying to understand what on earth is a prima facie case and what on earth is hearsay evidence. For them extradition is an executive act. They usually do not surrender their nationals. They claim extra-territorial jurisdiction over them. In Part IX it is proposed entirely to scrap the old safeguards and to recognise extra-territoriality and, in relation to any country covered by an appropriate Order in Council, make a surrender here an executive act.
The Minister says that crucial safeguards are retained in the Bill, but the safeguards in the hands of the Home Secretary under Clause 104 do not include any reference to the quality of the evidence which is submitted. If the Home Secretary receives a warrant in proper form and evidence of identity, and the document discloses an alleged extradition crime, he issues authority to the court, which court must then commit the person. Under Clause 101, the court is forbidden to consider the quality of the evidence; in other words, we must trust implicitly not the judicial system of our neighbours in Europe but the executive in those countries.
The aim of course is to enable this country to ratify the European convention on extradition but to adhere to the old evidence rule in relation to the Commonwealth under the Fugitive Offenders Act and reciprocally with the United States of America. I confess to a strong European bias towards the new procedure. However, I suggest that the Government must give an undertaking to file a reservation, if they ratify the convention, requiring the production of evidence. As I understand it, the Scandinavian countries, Israel and Ireland have all done that. I should like to hear from the Minister whether that is the intention of the Government.
This is indeed a complex and dense—if I may coin a phrase—ragbag of a Bill. It will require much thought in Committee and much effort, I fear.
§ 8.10 p.m.
§ Lord Ackner
My Lords, it is a particular pleasure to commence my address by adding my congratulations to those of your Lordships to my noble friend Lord Irvine of Lairg. I fell under the spell of his advocacy some seven and a half years ago. I had just been elevated to the Court of Appeal and I was doing my three weeks' compulsory pupillage sitting on the left of the Master of the Rolls, Lord Denning, with a large "L" around my neck—visible certainly to the Bar if to nobody else. We assented to his propositions very speedily but apparently the magic was not strong enough for what we referred to as the "voices of infallibility" higher up the scale. But then the noble Lord, Lord Denning, used to say—perhaps he still does—that those were not vintage years in the upper House.
I shall spend little time on the merits of Clause 29 because I cannot find them. It is a hollow, empty clause. I used to share some of the concern of the noble Earl, Lord Caithness, that the prosecution should have no direct interest in sentencing. But of course that is wrong: they have a direct interest in sentencing now. They have the duty to put before the court all the facts that are material to the sentence, in particular the past record of the accused and the very circumstances in 1308 which he has committed the offence. I have been brought round recently to supporting the proposition that the prosecution should have the right to appeal against the sentence. I have been brought round for two quite separate reasons. The first is that I learned—perhaps I should have known before—that such a provision exists in Australia, Canada and New Zealand, for whose jurisprudence we all have considerable respect. I accordingly wrote to a friend of mine, the Chief Justice of British Columbia, for his comment on how the system worked and he said that it was admirable. I also wrote to one of the senior judges of the Court of Appeal in New Zealand, Sir Ivor Richardson, with whom we had the privilege of sitting in the Privy Council for three months this year. He wrote me at length and one particular paragraph of his letter is worth quoting. He set out the various figures from 1971 to 1986. He then said:The 1986 figures not only show a surge in such applications"—that is for leave to appeal—but also in the success rate. Without detailed analysis of the judgments, I can only think that this reflects a considerable unevenness of sentencing in some areas of particular community concern, where there has been a great increase in the rates of offending. The three areas concerned are serious sexual offending, crimes of violence (particularly associated with robbery), and serious drug dealing".He might have been writing about our own problems here.
There has been concern voiced about what are the duty and limitations to be put upon the prosecution and what is their role if this right is allowed. I spoke to the Chief Justice of Australia at the Third International Appeal Judges Conference in Kuala Lumpur, which ended last Friday. Through him I achieved a certain amount of material. Perhaps I may quote two portions from the Australian Criminal Law Journal of 1985. They cite this from the judgment of Chief Justice King in the case of R. v. Wilton decided in 1981.
It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence, by an adequate presentation of the facts"—I interpose, as we have here—by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it".The same Chief Justice in another case in 1982, R. v. Osenkowski, said this:The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of a crime as to shock the public conscience".As is so often the case, we have been harrowed by the situation of the accused faced with an appeal against the leniency of a sentence. But what is frequently overlooked, and what causes much problem in our courts, are the sentences which are disparate and the sense of grievance which arises—as it does on occasions—where prisoner A is sentenced by Judge X and prisoner B, involved in the same offence but because, for one reason or another their trials 1309 cannot be brought on together, is sentenced by Judge Y, and there is great disparity between the sentences. The right way—and this is the way to deal with the public concern—is to impose the right sentence on each for the crime. That is what the public is interested in.
My second ground for changing my approach is this. There has grown up in recent times the sinister new blood sport of attacking Her Majesty's judges and then attacking them again if they have the effrontery—which they rarely do—to defend themselves. This is very valuable grist to the subversive mill. Undermine the public confidence in the judiciary and you have achieved a short cut to destabilising society. The popularity of this sport has even spilled over into a recent consultation paper, emanating from the Lord Chancellor's department, which hit the headlines in this country with the suggestion that High Court judges do not work hard enough. It hit the headlines not only here but in the Far East and I am delighted to say that the Lord Chancellor, in a question and answer exercise in Kuala Lumpur himself disowned the suggestion. By a strange coincidence, I had the same questions asked of me a fortnight ago at the end of addressing 400 judges and lawyers in Singapore, and I equally was able to reject the suggestions. But that is the fashion of the times.
Perhaps I may quote from the end of an excellent article in The Times of 9th February by a lecturer in law at Cambridge University, Mr. John Spencer. He said this:Even the best judges, being human, can make mistakes. If British justice is really the best in the world it ought to be able to correct them".The other point which I wish to make, like my noble and learned friend the Lord Chief Justice, relates to the absence of powers in the Court of Appeal, except in highly limited circumstances, to order a retrial. I hope an amendment to achieve this extra power will go through undefended. Perhaps I may read just a small paragraph out of a report prepared by the criminal law team of the Law Commission:So far as can be ascertained, in every jurisdiction that was within the former British Empire the criminal appeal court has the power to order a retrial where appropriate. These include every State in Australia, every Province in Canada, New Zealand, India, South Africa, Nigeria, Kenya and Hong Kong. It seems of particular significance that in these jurisdictions the power existed well before 1907 and at a time when the common law of the Empire was controlled from London. The power also exists in every State in the USA and in the Republic of Ireland.To interpolate, as your Lordships know, it now exists in Scotland and Northern Ireland. The article continues:The position in England and Wales seems now to be unique. Moreover, it would now be impossible to say … that there is a principle of the common law that once a jury has given its verdict a man cannot be subjected for a second time to the ordeal of a criminal trial. If there is such a principle it is limited to England and Wales. The near-unanimity of other common law jurisdictions on the point may tend to the conclusion that what has on occasion been perceived as a principle could now more accurately be described as a peculiarity.It was not long ago that I addressed your Lordships' House in a debate about the overcrowding of prisons when I deprived the noble Lord, Lord Mishcon, of five minutes of the time appropriate to him. I could not apologise then; I apologise now and I make good my apology by ceasing now to address your Lordships.
§ 8.25 p.m.
§ Viscount Mountgarret
My Lords, some years ago the mythical Mikado of Japan was made to say by the late Sir William Gilbert that his object, all sublime, was to make the punishment fit the crime. I think that notwithstanding the 136 pages of the Bill before us, it is a question not so much of what is in it as what it leaves out. I should like to address my remarks to, and concentrate upon, the theme with which I began. I do not believe that there is enough existing emphasis nor indeed any provision in this Bill to achieve that object. There is insufficient attempt to combat the everlasting and ever-increasing rate of crime in this country. I hope that we might be able to apply our minds to this and try to do something about it.
There is a general increase in crime, as the noble and learned Lord, Lord Elwyn-Jones rightly suggested. I do not have the percentage. But all 43 police forces last year reported more crime in 1986 than in 1985. The clear-up rate, on the other hand, has declined from 43 per cent. some 10 years ago to 31 per cent or thereabouts today. So, on the one hand, we have an increase in crime and, on the other, for whatever reason, a less efficient way of clearing it up. The crime prevention department states that the ethos of its policy is to encourage the public into policing itself. The department says, in its own words, that this is the only way. That is very wrong. There are many other ways which should be tried. We have persisted with the same methods over the last 20 years. That is too long. At the least, an effective and deterring punishment is needed.
Quite by chance I read the colour supplement of the Sunday Telegraph yesterday. Some of your Lordships have probably also seen it. The policy of the public defending themselves should, I think, fill your Lordships and indeed the country with horror. Your Lordships have probably heard quite recently of the young American on the suburban railway in New York who was attacked by a gang of four people who relieved him of some five dollars. Ostensibly to defend himself, he pumped the contents of a pistol which he owned into them, and he is now being hailed as a hero. Whether that was right or wrong I do not know. But that is the gist of what it would appear the crime prevention department is saying.
The article asks whether we are aware that it is estimated that around two million people keep some form of defensive weapon, an iron bar, a kitchen knife or what-you-will, beside their beds. Very laudable, but woe betide you; if you use them, you will be in the wrong. You have to wait until you are hit first, and by then it may be too late.
What is the point of saying you must defend yourselves? The noble Baroness, Lady Phillips referred to the increase in firearms. I share her concern. In the Metropolitan Police area alone, last year there were apparently 5,000 new applications for shotgun licences. I find it very difficult to believe that there is extra space for some 5,000 shotgun enthusiasts in pheasant-shooting syndicates or shotgun clubs in the space of one year. It makes one wonder why there is that increase in the number of applications. One might do well to look at that article. It is concerned that we are encouraged to get the public to defend themselves, however laudable the underlying thought may be.
1311 I should like to concentrate on three specific aspects of crime which I think give rise to great concern. The first is rape. The deterrent for rape does not seem in many ways to be working particularly well. It is a most appalling crime, sometimes uncontrollable by the person committing it. Naturally, sympathy and understanding must be very much borne in mind. But if one casts the mind back only a few weeks, for a child aged four to be raped by somebody is almost too sickening. If there are people like that who cannot control their instincts, for whatever reason, does it not give rise to the question that castration might be an answer?
I ask your Lordships to consider the crimes of violence against the elderly and muggings. We read endlessly every single week that the homes of another two ladies have been broken into, that they have been mugged and that their savings have been taken—savings that amount to half of nothing at all but which to them are their life savings. Those people suffer worry, concern and injury from bullies. For that is what they are; they are bullies. What do we do with them? We imprison them. Birching is the answer. Some of us were brought up to know how to treat the school bully. We treated a bully like a bully. We gave him some of his own medicine. He went away and did not do it again.
I have some statistics for which I am extremely grateful to my noble friend on the Front Bench. These statistics come from the Isle of Man where birching was abolished, I believe, in 1967. The number of crimes of violence committed on the island then was 42. In 1984, the last year for which I have the figures, the number had risen by 300 per cent. to 121. The population had remained virtually static. I agree it had gone up by about 4,000: but to all intents and purposes, out of a population of 60,000, such an increase is virtually static. Yet the second page of the informative letter I received says:The figures were compiled by the Isle of Man police who do not believe that the stopping of birching has affected the crime figures".I ask who is trying to kid whom? Who is trying to pull the wool over whose eyes? The next thing we shall be told is that the moon is made of cream cheese. Of course there is a connection between the two. It must be obvious. If I am accused of trying to pretend something that is different, very well, my answer is that we should perhaps consider giving it a try. We have tried the soft soap approach for a number of years. It does not seem to have worked very well. A different and rather more severe approach may be necessary.
The last point inevitably concerns the death penalty. We have had this bandied about uphill and down dale endlessly. It is said to be vindictive, to be an anachronism, un-Christian, sadistic and all the rest of it. We seem to forget that we are fortunately still—for how much longer I do not quite know if our crime rate continues as it is—a free society. If one is a member of a free society, it is rather like being a member of a club. When one joins that club there are certain rules and regulations by which one is expected to abide. If you break the rules, then you are invited to resign from the club and if you do not resign you are ejected.
A free society life is exactly the same sort of thing. If the ultimate rules are ignored or disobeyed on a 1312 continual basis in a severe enough way, then the offender must be required to leave that society, and in terms of human life that means death. It does not mean that one has to go through the rather gruesome (and I agree not a very attractive) proposition of hanging. That, I think is probably unnecessary. It is probably offensive to many people who would rather not have the death penalty at all. But things can be done in different ways. We are lucky that we now have very effective medicine and that sort of thing. An injection administered humanely, quietly and reverently could be given in decency and privacy to take away the rather more gruesome aspects of other means which I do not support.
However, we have a duty to look after our potential victims. For what would we have the death penalty? We have a responsibility already to our judiciary. We have regrettably seen the effect only this week on a most eminent and much loved judge as a result of his administration of the law. As regards the police, can we really expect young recruits to parade the streets of Tottenham where that awful thing happened, where a young man was hacked to death with a machete? Is that not simply ghastly? We have a duty to protect our police.
If we get these violent criminals into prison, who will look after them? The prison warders? What is to stop a mass of prisoners turning on prison warders and perhaps killing one. We have a duty to look after them. I say that for causing the death of police officers or prison warders, for terrorism, and in determined furtherance of theft where a person is prepared to kill in order to acquire that to which he is not entitled, the crime should be punishable by death—but not for crimes of passion. We all know that there are times when the string breaks and something goes a bit wrong. That must be treated with compassion and understanding.
As I said, this has been argued uphill and down dale before. We are concerned that in another place Members are elected by their constituents ostensibly to represent their views. I say "ostensibly" because there are too many occasions when those views are not represented. We all accept that the rules of government must proceed and that one must toe the party line, for want of a better word. But there are some occasions when there is no party line as such and there is a free and open vote. I have heard it said—I do not think anyone will contradict unless they have factual evidence—that about 80 to 83 per cent. of the people in this country would favour and welcome the reintroduction of some form of death penalty on the lines that I have outlined. Even if that is not so, there is a lot of difference between 83 per cent. and less than half. If that is so, then I ask myself what are the Members of Parliament doing by not taking on board the known views of their constituents? They are merely, in my view, voting according to the dictates of their own consciences. Therefore, it could be construed that they are not doing the job for which they are elected.
Your Lordships' House has a duty to reflect the wishes of the country. When another place seems unable or not prepared to do it, then we should think very carefully indeed about our role. I hope that the 1313 few remarks I have made on this aspect will be borne very much in mind.
There are other areas to which one could perhaps give consideration. We are told that the prisons are over-populated, that there is not enough room. We shall be increasing, or are proposing to increase, the length of prison sentences for certain crimes under the existing Bill. Where will they all go? We used to have deportation. It begs the question of whether that might not have to be thought of again.
§ Viscount Mountgarret
It is not a frivolous question, my Lords. If we could find a suitable place for people who could not be contained in this country and who cost the taxpayer an enormous sum of money—and I do not have the figures with me—there would be nothing wrong in letting them live on an island, having given them the necessary equipment to start off their existence, letting them get on with it themselves and letting them make their own rules. It would then require a certain amount of patrolling by ship. One has to think of some alternative.
We want to repay the victims of crime and repay their theft. Part V of the Bill refers to,offenders convicted of highly profitable crimes".Who is going to decide what is highly profitable? Any crime, any theft against the person, is a considerable loss to the person concerned, although in terms of money in the world at large, it may not be so great. To the person concerned however it is a great deal, whether it is a memento or whatever. People who have stolen and who are caught must be required to repay that which has been taken. If it is found that the person is unemployed, that he has very few assets or whatever, he has to be made to work. If he goes to prison and earns some money, that money must be kept on one side to repay the person until the debt is paid off. If somebody says, "What about his family and his children?", my answer is, "Tough cookie, you should not have gone and stolen in the first instance". Such provision should be considered carefully.
I should have thought that the Bill might perhaps be an engine in some way to take care of some of these ideas, although some noble Lords may feel that they are slightly draconian. None the less they should perhaps he given a try in the light of the obvious failure of our punishments in the past 20 years or so.
§ 8.41 p.m.
§ Lord Morton of Shuna
My Lords, I had intended to speak only on the provisions relating to the Criminal Injuries Compensation Board, but my first duty is to congratulate my noble friend Lord Irvine of Lairg on his excellent speech. It is a great pleasure to welcome another Scot to this side of the House and especially one who had the good sense to graduate from Glasgow University.
Before turning to the criminal injuries provisions perhaps I may deal shortly with two or three other matters. I should like first to welcome, subject of course to the criticisms that were so eloquently put by the noble Lord, Lord Hutchinson of Lullington, the provisions on extradition in so far as they give the 1314 Scottish courts the jurisdiction to deal with appropriate cases. So far that is welcome to a Scottish lawyer. I should also like to comment, if I may as a Scot, on the provisions in Clause 29 and the argument that has developed. If there is to be a right for the prosecution to appeal against an inadequate sentence in England and Wales, it would perhaps be probable that that might follow in Scotland.
The whole of the argument that has taken place, and especially the speech we have just heard from the noble Viscount, Lord Mountgarret, works on a basis which in my view is in error—that it is the sentence which is a deterrent. Having worked on prosecution for about 10 years I am convinced that the main deterrent to crime is the possibility of conviction. If a criminal sets out knowing that he has a one in five chance of getting caught he is far more likely to do it than if he knows he has a four in five chance of getting caught. The sentence is far less significant than the actual conviction.
On the matter of the death penalty, I suggest that it has been far easier to obtain a conviction on sufficient evidence since the death penalty was abolished than it ever was when the death penalty existed. It was extremely difficult—the standard of proof was very high—and therefore if the death penalty returns more murderers will be acquitted. If that is what the country wants, so be it.
It would be unfortunate if an appeal against sentence was open to the prosecution. The trial judge has heard all the evidence. He knows the flavour and significance of the evidence. He has heard the way the injured people and the other witnesses have given evidence. It is extremely difficult to suggest that on paper a Court of Appeal would be able to say that a sentence was clearly inadequate when it did not have the advantage that we have been told so often by the Court of Appeal and by this House in its judical capacity is available to the judge at first instance, of seeing what a former Lord of Appeal referred to as the flick of the eyebrow of the witness. It is very difficult to see how that could be done properly. It becomes impossible if the tabloid press has attacked the sentence of the judge of first instance and there is some form of public outcry about the sentence which forces the Attorney-General to send it to the Court of Appeal. It is very difficult indeed for anybody, even a judge of the Court of Appeal, to put out of his mind such matters.
I turn now to the provisions of Clauses 79 to 88 and Schedules 6 and 7, which deal with the provisions for the Criminal Injuries Compensation Board. I have to declare an interest as I have been a member of the board since 1979. The board has existed since 1964 as a non-statutory scheme. There can be no objection to making it statutory. It is unfortunate, however, that the present scheme, which runs to 25 paragraphs covering six sheets of paper of exactly the same size as we have in the printed Bill, is to be replaced by 10 clauses and 30 paragraphs of schedule extending to 16 sheets. It would have helped if the extension had made the provisions easier to understand because the purpose of the scheme is that victims of crimes of violence should be able to apply themselves, understand the scheme and see what it is all about.
1315 If one turns to Clause 80(10) one finds the first complication which no doubt will be put right in Committee. There are two paragaphs (a) and two paragraphs (b) in subsection (10). At paragraph (b)(ii) there is this remarkable phrase:if the person injured has not so ceased to live, that he is prevented by circumstances from doing so".There is a meaning to this and one can find it out if one has legal training, but if somebody—for example, the notional old-age pensioner—gets hold of this clause of the Bill and has to work out whether he has a right to apply and he reads this, he will begin to wonder what it means. The phrase,if the person injured has not so ceased to live, that he is prevented by circumstances from doing so",is not clear in its meaning.
Under the scheme compensation was payable for personal injury directly attributable to a crime of violence (including arson and poisoning) or to attempts to arrest offenders or prevent offences. It is far from clear why it is necessary to go into a more extensive definition.
Clause 80 attempts to define what is meant by a violent offence. This is done in rather tortuous langauge:conduct constituting—
The injury has to be:
- (i) a violent offence or;
- (ii) an offence specified in subsection (4)".immediately caused by or closely connected with",the violent offence. What is the purpose of changing the words "directly attributable to" to "immediately caused by"?
We are fairly well accustomed in law to knowing what is meant by "caused". "Immediately caused" is a new concept. It will surely give the courts a wonderful time working out what is immediate and what is not. Apparently what is not immediate is not to be given compensation.
Then one has an even more difficult legal concept to define: what is "closely connected with" a crime of violence but not "caused by" it. I suggest that to have left the wording as it was would have caused the courts no trouble.
Lord Justice Lawton in the Warner case said:I do not think it prudent to attempt a definition of words of ordinary usage in English which the Board, as a fact finding body, have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences".I am afraid that what has been produced is an absurd consequence. Under Clause 80(2)(a)(ii) one finds:conduct constituting a violent offence; or an offence specified in subsection (4)".Under subsection (4) the first offence is rape. According to this, therefore, rape is not a crime of violence. That is surely absurd. Rape in my understanding has always been a crime of violence.
Then one comes to an offence that falls to be charged as arson. I am sorry to put on my Scottish hat again, but there is no such crime in Scotland; it is called wilful fire-raising. There is no definition saying 1316 that wilful fire- raising is to be read in Scotland as meaning arson in England.
Then comes an offence under the Explosive Substances Act 1883 and under the Firearms Act 1968. As I understand it, the point concerns people who possess explosives or firearms with intent to do various things. The penalty on the person is because of his possession, not because he causes an explosion or uses the firearm. It is because he is in possession at the time of the robbery or in the street and so on. The intention is to attack the possession. The possession does not cause the crime of violence; it is the use. The whole concept of using firearms and explosive substances legislation in the case of a crime of violence shows a complete misunderstanding of the purposes of the legislation.
I suggest that it would be better to return to something fairly simple, to cut out about 30 lines and to say that persons who suffer personal injury caused by a crime of violence are entitled to compensation. But perhaps that is too simple.
I pass on to some more minor matters. Under Clause 81 there is provision for Schedule 7 to permit a three-year limit on reopening cases. It has been the habit of the board over the years to tell applicants who have a risk of severe deterioration—for example, epilepsy or blindness due to a detached retina—as the result of an assault that they can come back at any time if that occurs. We are now to have a three-year limit. The board is therefore, breaking its word to all the people to whom it has given assurance in the past.
Secondly, and perhaps as important, this goes against the approach of the civil courts, which in the last few years have gone in for making awards of provisional damage. It is a retrograde step to say that compensation must be given for the risk that a person may suffer epilepsy in future. If one compensates for risk, one is always wrong. Either the person gets epilepsy, in which case one has given him too little, or the person never gets it, in which case one has given him too much.
There are other retrograde steps which I hope can be put right in Committee. As the Bill is presently drafted, clothing is to be excluded. When a pensioner or an unemployed person gets mugged in the street, such a person is often wearing his only coat. It is intolerable to say that a person shall not get compensation for the clothing that he is wearing. Similarly people may have glasses or a hearing aid for which they have paid a fairly substantial sum of money. These are to be replaced by property of equal utility though not of equal value. Thus the cheapest spectacles will replace the more valuable ones. The earnings limit is to be reduced from two to one-and-a-half times the national average wage, which seems a fairly mean approach.
Then one comes to medical expenses. The scheme at present allows the board to pay private medical costs if it considers these reasonable. Paragraph 5(5) of Schedule 7 provides that private treatment is to be allowed only if it is essential. In the case of a person with a scar on his face, what is "essential" about repairing the scar? There are waiting lists for plastic surgery on the National Health Service. This in effect amounts to waiting for people on the list to die. There 1317 are also waiting lists for surgery to people's noses. The waiting lists can be as long as four, five or more years. Two or three months ago in London there was a young boy of Indian origin who had to have his nose straightened to allow him to breathe properly. He had been waiting four years for an NHS operation, and it was estimated that he would have to wait another two. It would surely be reasonable to allow private treatment in such a case. But would this be said to be essential? Is that what is being cut out?
Given that the cost of the criminal injuries scheme is roughly equivalent to the cost of maintaining military bands, I think it is rather unfortunate for us to consider approving measures as penny-pinching as these. As a lawyer, it is difficult to see that if we spend on criminal injury compensation roughly one tenth of what is spent on legal aid, we cannot afford to replace people's coats or give them private operations if that is necessary.
The next matter I wish to raise is that of nervous shock. I had understood that pressure had been put on the Government and they had undertaken to meet the type of case where a railway driver suffers shock because of somebody having committed suicide in front of his train. As we know, there have been numerous such cases recently before the courts. We understood that the Government had said this was to be within the scheme.
However, if one looks at Clause 80(11) and (12) one finds that nervous shock is excluded unless it amounts to a psychiatric illness. The railway driver, when somebody throws himself in front of his train, does not suffer a psychiatric illness as a general rule; he suffers nervous shock. He is off work for perhaps four or five weeks, or possibly two or three months, and then he goes back to work. I should have thought he would be entitled to compensation; but that would be ruled out by this part of the Bill. Is that really what is meant?
Finally, I should like to refer to the staff question. It is unfortunate that, despite the recommendations following the Civil Service inspection in 1983 that an increase of staff was then needed to reduce the backlog, in spite of the situation last year when there was a three-month delay between applications being received and anything being done about them and in spite of the promises of additional staff given in the form of Answers in this House on 8th April and 16th July 1986, the additional staff have not yet appeared. We understand they are coming in June—but then other things are perhaps coming in June and that may be the reason that the staff are at last coming. They are three-and-a-half years late.
The delays caused by insufficient staff have brought distress to applicants and have made a very loyal staff grossly overworked. However, the Bill provides that they are not to be Crown servants. I trust the Minister will be able to assure the House that the staff will continue to receive remuneration and other emoluments on the same basis as civil servants and that the present useful system, by which members of staff work for the board for some time and then can look for promotion elsewhere in the Civil Service, will continue.
I regret having taken so much time. It is important that this scheme, when it is made statutory, is as near 1318 correct as it can be made. It is also important that its provisions should be able to be easily read and understood, unless there is to be provision that everybody applying to the board shall be given free legal aid to understand the scheme. I suggest that there is no need for that. It could be made much more simple and should be.
§ 9.3 p.m.
§ Lord Meston
My Lords, as has already been said, this is a very disparate Bill and at Second Reading one must be selective about what one says, particularly at this stage of the evening when everything one wanted to say has already been said, and said much better.
This Bill is welcome but it contains flaws and inadequacies. As my noble friend Lord Hutchinson said, Part II makes far-reaching inroads into the rule against hearsay evidence. It allows documents to speak for themselves in the perhaps oversimplified words of the White Paper. It follows, as he told your Lordships, another relaxation of the hearsay rule very recently in Sections 68 and 69 of the Police and Criminal Evidence Act 1984. But there was one important difference. Under Section 68 of the 1984 Act, as under the Civil Evidence Act 1968, before a document becomes admissible it must be shown that there is a good reason for not calling the author of that document. This Bill does not have that same emphasis. I would suggest that the Bill would not be damaged if it were tightened so that there have to be shown to be good reasons why a document cannot be called, and also there should be safeguards to ensure that such documents as are admitted are intrinsically reliable.
Of course we can overhaul the rules of evidence, but I would hope that we should do so in such a way as to bring in more clarity and less judicial discretion than the methods selected in this Bill. Otherwise we might find ourselves in the curious position that we would have more stringent rules about admitting hearsay evidence in civil cases than in criminal cases. This is not just a technical area. It affects the fundamental right of an accused person to test evidence by cross-examination.
Moving on to Part III of the Bill, that same basic right concerns the lawyers in relation to Part III. Part III introduces live video links. That is a valuable enabling provision which if well used could improve the quality of evidence before the courts. However sensitively handled, there are some features in the criminal procedure which will, and do, frighten already frightened children. We cannot shrug that off. It is hard to think of a more difficult place than a court for a child to talk of a distressing experience such as sexual abuse.
The provisions of this Bill are useful but I join the noble Lord, Lord Campbell of Alloway, in saying that it does not go far enough. As he told your Lordships, there has been considerable authoritative pressure in the legal journals to persuade the Government to enable video taped interviews of abused children to become admissible in evidence. I would support that, subject to suitable rules and safeguards, including the opportunity for cross-examination.
The best evidence is the freshest evidence. Delay weakens any evidence, and in the case of child abuse 1319 it exposes the child witness to pressures. If the child's version of what happened can be video-taped at an earlier stage, it would be better evidence and there would also be a better chance of a guilty plea being made in appropriate places. There is conversely less opportunity for the child being persuaded, perhaps by his or her mother who does not want the father to go to prison, to retract or trim his or her evidence.
In improving and modernising the rules of evidence in criminal cases, there should be a valuable spin-off into civil cases involving children in which video evidence is already used with a mixed response from the judiciary. Of course, not all cases lead to criminal charges and not all criminal charges lead to convictions. Yet very often a court exercising a family jurisdiction has to pick up the pieces and assess not so much the guilt or innocence of the adults involved as the future risks to the children. If the quality of the evidence and the techniques of filming and interviewing children for clinical as well as forensic purposes can be improved, so much the better, but it will be necessary to do further work on reconciling the clinical and forensic techniques.
The collecting of evidence as part of a co-ordinated procedure dealing with cases of sexual abuse has already been undertaken using the co-ordinated expertise of social workers, police officers and the like. Those who have been involved with this area of the law now know of what is called the Bexley experiment, and I wish also to pay tribute to the Kensington and Chelsea social services department which has done pioneering work in that direction. There is some way to go and it may be that all that we can ask the Government to do is to give us an enabling provision, but we should at least have that.
During the dying stages of this Bill in another place it was understood that the Government intended to move on this matter. Today we are told that there will be a discussion paper. A discussion paper is welcome, but, as I indicated to your Lordships, there has already been considerable discussion. This is a valuable opportunity to get this matter right and put on the statute book particularly as we are increasingly aware of the problem of the sexual abuse of children. Fresh thought is also needed on the rules of corroboration in child cases. If we are to shake up the evidence and blow away the cobwebs in the rules relating to fraud cases, let us do the same in relation to cases that involve children.
I turn to about the only aspect of this Bill that has not been touched on previously; namely, Clause 125, which deals with the alleged victims of rape. This clause goes some way toward guaranteeing the anonymity of rape victims but it is still deficient. It does not meet either of the points made in an authoritative letter to the The Times, printed on the 25th March 1986. That letter pointed out that there are still insufficient penalties to deter the wealthy, ruthless newspaper proprietor, and furthermore that, although rape victims are protected, there is no protection for the victims of other almost equally abhorrent sexual offences. I should have hoped that the opportunity could be taken to rectify those two deficiencies.
1320 We have heard about the abolition of peremptory challenge from those who are more experienced in this matter than I shall ever be. One simply has to ask why. Where is the evidence that it is misused? If there is evidence of it being misused, possibly in multiple defendant cases, why can we simply not have an upper limit in such cases? At the very best it is a right that is valuable, albeit limited, and at the least it is a useful safety valve. Its counterpart is found in the finality of a jury's verdict. Surely the Government can rely on the restraint of responsible counsel, among whom I hope I can include myself. Like my noble friend Lord Hooson, when advising a client I am aware of the fact that challenging a juror can be counterproductive. I always tell a client, "You have the right to challenge a juror but, unless your mother-in-law or someone else whom you would rather not have on the jury turns up, I should keep quiet because you will irritate the judge and raise questions in the minds of the rest of the jury".
However, if that right is to be abolished—and I hope that it will not be—we must have better safeguards against unsuitable people sitting on the jury. I hasten to say that I would not suggest that Welshmen are inherently unsuitable members of a jury but some of your Lordships may remember the case of Thomas that was reported in 1933, in which after a trial that was conducted substantially in English, it was discovered that two of the jurors spoke only Welsh. That is all very amusing but it had an echo in a case that was reported in the newspapers last year—I think it was at Knightsbridge Crown Court—in which a trial had to be restarted after it was discovered that the jury included an Asian lady who had not understood a word of the proceedings.
It is not just a question of language problems. Certainly in the last jury trial in which I appeared prosecuting counsel told me that he would ask one of the jurors to stand by because it turned out that he had quite a serious criminal conviction. The juror stood by and was presumably sent home. No doubt he lost a day's work and had to be paid his juror's expenses, which was a waste of his time and the taxpayers' money. I inquired in a friendly fashion how he got there in the first place and there was a widespread shrugging of shoulders: he should not have been there in the first place.
Your Lordships may have seen the letter in The Times last week from a lady who reported that her 88 year-old husband had just received a jury summons. One's heart sometimes sinks when one hears a juror struggling through the oath either because he is not properly literate or because he is not familiar with the English language.
One difficulty—and perhaps we can deal with this if nothing else—is that strictly speaking a challenge has to be made before a juror starts the oath. Once he has started to take the oath, strictly speaking again, it is a matter for the judge's discretion as to whether he can be removed. Surely the time has come to alter that rule.
We are opening the door to challenges for cause. We all look at America and say, "Well I hope it will not happen in this country as it happens in America". The case of Jack Ruby, in which over 15 days 162 potential 1321 jurors were examined, is always cited. However, there are no up-to-date guidelines on how challenges for cause will be conducted. From my limited researches such case law as there appears to be is archaic. I suggest that we should leave peremptory challenge alone; if not, the courts must have better guidelines for an effective way of dealing with challenges.
Turning to the question of sentence, I share your Lordships' dismay that Clause 29 appears in the Bill. Appeals by the prosecution was a half-baked idea when it was rejected by your Lordships' House on 24th January 1985 and it is a half-baked idea now. As your Lordships have already said more eloquently than I can, it will expose judges to criticism from the ill-informed or the partially informed and it will expose the Attorney-General of the day to pressure to placate public opinion generated by the press.
The Court of Appeal may say that the sentence was right or within the acceptable range of sentence, which may or may not reassure the public; or it may say that the judge was wholly wrong, that he went right off the bottom of the scale but that it cannot do anything about it in that individual case. That can only add to public dissatisfaction. However, that overlooks the fact that day in and day out sentences are being passed which do not attract press attention and which are entirely consistent with the guidelines that are laid down and regularly reviewed by the Court of Appeal. Clause 29 proposes an unnecessary academic exercise, as many of your Lorships have already said. The question is therefore where we go from there.
Some of your Lordships have argued that we must go the whole way and have full-blown appeals by the prosecution against sentences or, as the noble Lord, Lord Windlesham, argued, that we should leave things as they are. I agree with him that we should leave things as they are and that we must think long and hard before we interfere with the well-established principle that the prosecution plays no part in the sentencing process and the long-established principle that a defendant should not be exposed to double jeopardy.
This Bill increases a number of sentences in accordance with the recommendations in the White Paper and I cannot do better than remind your Lordships of comments that were made in an editorial in the Criminal Law Review in response to the White Paper in May of 1986. It stated:There is every reason why maxima should 'be kept under constant review', as the White Paper says. Yet these proposals and the other recent changes amount to piecemeal adjustments in one direction only, without a rounded consideration of the overall structure…what is needed is a systematic review, going further than that conducted by the Advisory Council on the Penal System in its 1978 report, a qualitative rather than a quantitative evaluation…it is vital to retain a sense of proportion, and to show equal concern to the large numbers of small-time thieves and handlers of stolen goods who receive relatively harsh punishments and swell the prison population".Finally, I turn to young offenders. I welcome the reference made by the noble Earl to flexibility in this regard and, in anticipation of amendments which may be tabled by my noble friend Lord Hunt, I argue for a single generic custodial sentence for the younger offender. I understand there has been an indication from the Government that they would consider that course. I welcome that indication, if I am correct. If I 1322 am not, I give warning that there will be amendments by my noble friend. Although this Bill improved itself in another place, there was, I am afraid, too much time spent on hanging and flogging. This Bill requires the detailed thought of your Lordships' House as a revising Chamber.
§ 9.20 p.m.
§ Lord Denning
My Lords, I should first like to add my tribute to the speech of my noble friend Lord Irvine. I have had the pleasure of hearing him in court as an advocate. I hope that we shall have further opportunities of hearing him in this House.
As regards this Bill, serious fraud in the City of London has become one of the most objectionable features of our time. But many of those frauds have not been prosecuted because it is far too difficult and takes too long to get a trial or, more than that, to get the offender convicted. That is because fraud is too complicated for the ordinary jury to understand. The great thing which has been done by the committee of the noble and learned Lord, Lord Roskill, and his colleagues is to produce the first parts of this Bill, and may I say how much they should be welcomed by all of us. Serious frauds are to be in a department by themselves under a Serious Fraud Office, with its director taking charge of the cases from the beginning, and, furthermore, with a new procedure of preparatory hearings and the like bringing it much more into tune with modern times.
Added to that, our old rules of evidence which were based on oral testimony by witnesses—and often, in those days, juries could not read or write—are really out of date. In all our many practical affairs nowadays we go by the documents, we go by the writing made at the time, and the like. So how much it has to be welcomed from the report, which is brought into the Bill, that the rules of evidence are to be modernised by allowing documents in evidence far more than has ever been done before. Then, following the drug trafficking cases, offenders in great robberies with millions of pounds being stolen should not be allowed to get away with their proceeds. They should be confiscated and we should have all the machinery at hand to stop offenders taking their proceeds out of the country and laundering them so that no one can get at them. Again, how welcome that should be.
I think I remember taking part in the debates about 20-odd years ago on compensation for victims of crimes of violence. It was brought in as a voluntary system and has developed so well that it is most important. It should now be put on a statutory basis and this Bill is doing that. Then there is extradition and the like. This Bill has most valuable provisions in it. I hesitate to go further except on the two or three points of principle which have been discussed this evening.
Let me first take Clause 29. That should be rejected altogether. It is neither one thing nor the other. There ought to be either no appeal by the prosecution or a full appeal as for the defence. What is the reason for all this turmoil? I must say that like my noble and learned friend Lord Ackner I have altered my mind about the question of appeals by the prosecution when it is said that too lenient a sentence has been passed. The reason 1323 that I have changed my mind is the importance of maintaining the confidence of the public in our administration of justice. That confidence has been gravely impaired by the actions of the media in criticising judgments as being too lenient and the outcry which inevitably follows. Of course we all remember the Ealing vicarage case. The judge in that case, realising how important the case was, gave a reasoned judgment is his decision. It seems to me that he was a good judge and that the judgment was well reasoned. However, the media commented and there was then an outcry.
I do not blame the media; they are doing their job. I should like to read the words of Lord Atkin in the very important case of Ambad v. Attorney-General of Trinidad which is contained in the 1936 appeal case reports at page 333. He said:No wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith, in private and in public, the public act done in a court of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein. Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men".Therefore the media are doing what they are entitled to do. They are entitled to inform the public of what happens in a court of justice. They are entitled to express their view that a sentence is too lenient because they are, so to speak, the voice of the public who hear and understand. Therefore I do not criticise the media for doing their job. However, it means that if a sentence is too lenient and if it shakes the confidence of the public in the administration of justice. it should be open to correction in the Court of Appeal. It means altering the tradition of centuries.
I have tried many cases. As the Lord Chief Justice has said, the accused, with the eloquence of his counsel, puts the case for mitigation. The prosecution says, "I leave it to your Lordship". Let me give your Lordships an illustration of a case which I tried many years ago at the Old Bailey. The driver of a large car—perhaps an embasssy car—was a man of high reputation and character. He was driving along one of the streets in North London. He overtook wrongly, went on the wrong side of the road and killed two young girls who were cycling along the other side of the road. I listened to the advocate for the defence. I was influenced by him. The defendant was a man of the highest possible character who had that mischance and misadventure which was caused by an error of judgment on that occasion. Influenced by that, I sentenced him at once to nine months' imprisonment. I had not heard counsel for the prosecution.
That evening I thought of the parents of those two girls. I thought of the public reaction to my sentence—ought I not to have sentenced him to two years? I think I ought, and I say now that I ought to have done so. If I had heard the prosecution, if they had been able to speak to me and remind me of those other factors then I think and hope that I should have come to the right decision of two years for manslaughter. There, that is just experience. It is that experience and also the reporting of the Ealing vicarage case that leads me to change my mind. As the Lord Chief Justice has said, let the prosecution put forward their case, not suggesting any particular 1324 sentence, just putting before the trial judge the points which have to be considered from the public point of view. Then, if the sentence is too lenient let the matter go to the Court of Appeal.
If I may say so I should imagine that very often the Court of Appeal will not interfere because it will not have had the advantages which the trial judge has had; namely, seeing the witnesses and the accused, learning whether he is repentant, and hearing argument from both sides. I believe that rarely will the Court of Appeal interfere. But, on balance and in order to keep the confidence of the public in the administration of justice in the face of attacks by the media, I have changed my mind and now think, as does the Lord Chief Justice, that there should be a right of appeal. Perhaps I may also ask where now an appeal is allowed and it is not a matter of fresh evidence—perhaps the judge has made a misdirection—ought there not to be a power in the Court of Appeal to retry the case or to order a retrial? My answer, in accord with the Lord Chief Justice, would be, "Yes, but it is not in the Bill yet—let us hope that it may be".
I have only a few words to say concerning the question of juries. Much has been forgotten about their history. Let me remind noble Lords that since 1825 there has always been a property qualification for juries. A juror had to be a householder, which usually meant the husband, the man of the house, and there had to be a rateable value of £30 on the house, which was quite a considerable sum. So we had on the jury what Lord Devlin once described as "all male, middle-class and middle-aged"—and a jolly good jury they were. If I may go further, I have addressed many juries and have had the greatest confidence in their intelligence and in their ability to follow the evidence, and the written material if need be. They were first rate.
I do not remember, and I do not think there was ever one, a challenge in any of the courts where I sat. There was never a challenge in those days. In his book written in 1956 Lord Devlin said the challenge for cause was obsolescent and that peremptory challenges were virtually out of date and very rare. What is the reason for the difference now? Instead of being male, middle-class and middle-aged, in 1974, following Lord Morrison's committee, everything changed. Anyone, however poor, however rich, over 18 and up to 65, could be on a jury so long as he was on the voting list. It did not matter whether or not he understood English or whether he could speak only Asian, Welsh or whatever it might be, and there would be no one to interpret the evidence to those who did not know our language.
I believe it is essential£and I think the committee of Lord Morrison said this£in order to try a case properly for the jury to be able not only to hear the evidence but to read and write. In a fraud case members of the jury ought to be able to understand accounts. They should be able not only to add up and subtract and, these days, work a computer but to follow accounts and examine them to see how these fraudsters can wangle matters, putting money from one account into another, and so on. In order to try such a case a jury should have all those qualities. The jury should be able to understand the evidence and its implications.
1325 We do not have that. Even now, as we have heard, if a jury is needed to try a long case of fraud, who is able to give six months of his life to sitting in a jury box? The unemployed or the retired are the people one gets. Is that fair to either side; to the prosecution or the defence? That is why prosecutions are not brought when they should be. That is why the noble and learned Lord, Lord Roskill, and his committee said we should not have an inexpert and perhaps ignorant body of people of any age or ability so long as they are between 18 and 65 and on the voters' list, but a tribunal which can follow the case, understand it and detect the implications. There should be a judge with two expert assessors and accountants. The committee gave all its reasons and it was right in suggesting that there should be a special frauds tribunal.
No doubt the Government listened to the protests from all the people who claim that we should be losing our great right of trial by jury, and they did not include that proposal in the Bill. I suggest that, in these days of serious and severe fraud which is bringing the name of the City of London into disrepute, we should think again about the proposal for a special tribunal for serious fraud.
I have little time available for my last point, which concerns peremptory challenge. As I have said, in the old days I never heard of a challenge and I did not have one. Challenges only arise because we have everyone on the voting list able to serve on a jury. Challenges first came about when a jury of all men or all women was required. There were some challenges then. However, one can see the danger now. Even with three peremptory challenges, if there are 11 or 12 accused, that can result in 33 or more challenges. One can see the dismay of a perfectly respectable citizen who has been summoned to do his public service on a jury. He puts on his best suit and goes to court hoping to be chosen. He is called but as he goes into court he is challenged. No one says why. He is turned down and not allowed to do the public service which he was called to do. There is dismay for the ordinary citizen who is challenged in that way for no apparent reason.
We have heard that counsel get together to decide on what their policy should be. Some say that they should accept the intelligent jurors and challenge the ignorant, or perhaps the other way about. It depends on counsel's view as to the best tactics. If he challenges one juror, he does not know what the next man will be, Peremptory challenge, as it exists today, is completely illogical. I wholeheartedly support Clause 89, which abolishes peremptory challenge.
I have covered much too much ground, but this is an important Bill. There will be plenty of controversy. I congratulate the Government on putting it forward. I am sure that it can be helped in Committee. It is a matter for congratulation that the Government have done so much already.
§ 9.40 p.m.
§ Baroness Faithfull
My Lords, with others I congratulate the noble Lord, Lord Irvine, on his maiden speech. I trust that he will support the amendments that I hope to move and then I know that there will be a chance of getting them through. I am sure that the Minister will also support them.
1326 As one who worked for 10 years in the children's branch of the Home Office and in the Department of Health and Social Security and who was a children's officer and a director of social services, I shall inevitably confine my remarks to children and young persons. I am a little sad that in over four hours only four Members of your Lordships' House have mentioned children and young persons. They were my noble friends the Minister and Lord Campbell of Alloway and the noble Lords, Lord Harris of Greenwich and Lord Meston.
I shall make just one comment:The child is father to the man".If we had a policy for children and families, I wonder whether we should need to build so many prisons to which people could go in later life. I remember talking to the noble Lord, Lord Windlesham, the chairman of the Parole Board. He said to me one day that if social workers did better with children the Parole Board would not have so much work. I believe that to be true.
I shall refer briefly to three points. The first relates to detention centres. Detention centres—the short, sharp shock—were set up approximately 16 years ago. I did not agree with them then; I do not agree with them now. I am told that they were set up because in those far-off days there were detention centres in the services. The service detention centres were a success and it was therefore thought that detention centres for children and young persons would be a success in civilian life.
For a time it was my privilege to visit the Royal Naval detention quarters in Portsmouth and the military corrective training centre at Colchester. They are both splendid places. They offer a splendid service, but neither of them resembles detention centres in civilian life.
I agree with the noble Lord, Lord Meston, that the time has come to stop wasting money on detention centres. The figures and research show that they produce a bad recidivist rate. I have had letters from the Magistrates' Association, the probation service and social services asking whether under this Bill one custodial sentence could be provided instead of detention centres and youth custody centres, which are underused because they are expensive, and whether this is the time to take up the matter.
I was a little concerned that the Minister said it was hoped that young people would not be sent to prison but instead would go to detention centres. I am not sure what was meant by this. Is it automatic that they would go, or are we going to deal with each child and young person according to their need?
My second point concerns the Criminal Justice Act 1982 which gave courts the power to include specified activities in supervision orders on juvenile offenders. Those specified activities included intermediate treatment and other activities. In this Bill in Schedule 8 the courts are to be given powers to send a juvenile into custody for breach of specified activities requirements in supervision orders. Is this not a retrograde step?
First, a child or young person is being sent into custody for behaviour which in itself is not an offence. This is also inappropriate. I suggest that in other areas 1327 of our legislation emphasis is being laid on community care. This would not be community care. This would be extending custody. We have more children in custodial care in this country than any other EC country. I hope that we shall press for this clause not to go forward. If it does, it will mean that we shall not improve our community services; we shall rely on custody, which I think would be a retrograde step.
I then come to Clause 21 about which the noble Lord, Lord Meston, spoke so well. Perhaps I may speak on it also. First, I have received the figures from the Leeds Infirmary. In the last two years it has had 300 cases of child sexual abuse. Of those, one-third were under five. I pay tribute to Her Majesty's Government for Clause 21 but, like other noble Lords who have spoken, I do not think that it goes far enough.
With regard to the video link with the court, we all support this. The trauma of children or young persons appearing before the court and having to face the person who has committed the crime against them is something that I know children find an almost impossible experience to contain. I should like to ask the Minister this. Is there any good reason why 14 was chosen for the age below which children would appear on video link with the court in sexual abuse cases? I imagine that it is to do with either the 1933 or 1939 Children and Young Persons Act, but I have to ask whether it is in accordance with the new child care law which is being looked at in the Department of Health and Social Security.
I then come to a point made by my noble friend Lord Campbell of Alloway on the question of evidence by children immediately after the event. I have dealt with many children. I wonder whether any noble Lord has had to deal with a child who has been sexually abused. First, in my experience they immediately tell one the truth; they have no other way. But I have to say that they do not know what truth is. I asked a child one day, "Susie, is that the truth?"; she looked at me in the most endearing way and asked, "Who is Mr. Truth?". Children do not know the truth but they speak the truth immediately after an event has taken place.
It is said that it is dangerous to have admitted in evidence a report that has been taken; I know that many people are against this. It is with great regret and sadness that I say that in the years past the Great Ormond Street Hospital for Sick Children has given and is giving a magnificent service to children. But the one area in which it has perhaps not given a good service—and I am sure that the staff of Great Ormond Street will forgive me if I say so—is that it produced videos which were not applicable for court work. I know that many of the judiciary saw those videos and were horrified at them; they thought that they represented a video which could be given in evidence.
If the court agrees on those who should interview the child—and I suggest there should be two people interviewing the child—consideration might be given to one of them being a member of the police, a policewoman. At this stage perhaps I may say how much those of us who are social workers regret the passing of the special policewomen who used to be 1328 trained in interviewing those who had been raped, children who had been hurt, children who had been interfered with and sexual abuse cases. Never did I take a child to a police station through the normal entrance because in the area where I worked the policewomen, who were highly trained, had a special area where one could take such cases. I hope that we might consider bringing back those specially qualified policewomen to deal with child abuse cases.
I would make another point. If one is dealing with a child who has been seriously abused one must immediately have that child physically treated because he or she will in very many cases have been physically interfered with and damaged. But also one must carry out therapy. The children must learn to come to terms with and live with the experience that they have had. You cannot leave it until the court case takes place. Therefore if you do not admit the evidence taken immediately after the event has happened and if you wait until the court case three months or six months later, you will get the child saying quite a different thing, with quite a different colour, quite a different complexion.
There are other factors such as interference and so on, but I very much hope that in this Bill we might somehow come to terms with admitting evidence given at the very time of the event. I ask my noble friend the Minister exactly what the position is. I wrote down that he said there would be consultations. I think there has been a project in Bexley in which the Metropolitan Police were also involved, but I understand that it was carried out some time ago and has finished. How are we to get such a provision into this Bill if there is still to be consultation? Are there going to be consultations, with regulations written into the Bill? How will we get the recommendations which so many people in this country want into this Bill if there is to be further consultation? I should be most grateful if my noble friend could let us know about this.
Very briefly, I hope that Her Majesty's Government, who have always been very good about children and families, will seriously consider the recommendations made so that we may give a better service to children.
§ 9.54 p.m.
§ Baroness Ewart-Biggs
My Lords, I find myself very much in agreement with my noble friend Lady Phillips when she said that those of us who have the temerity to speak in this debate and who are not part of that magic circle made up of eminent judges, lawyers and recorders, feel very much like intruders. However, I shall be making only a brief intervention in language which I know the Minister at least will understand because he and I are agreed that we are the only ordinary mortals taking part in this debate this evening.
I should first like to reiterate what many previous speakers have said in admiration of the maiden speech of my noble friend Lord Irvine. Unfortunately he has left the Chamber to revive himself, but nevertheless I should like to say what a very great relief it gives to those of us on this side of the House to have him with us. I can only imagine that those noble Lords sitting 1329 on the opposite side of the House must be feeling the reverse.
I should also like to reiterate a basic fact which my noble and learned friend Lord Elwyn-Jones stated (a very long time ago it seems now) when he said that the major criticism which must be levelled against the Bill is that it lacks significant proposals to reduce this country's excessive use of imprisonment. Not only is this true, but what makes this omission the more regrettable is the ever-growing evidence that an excessive use of custodial sentences, apart from a lack of humanity, fails also to deter. This proof lies in the fact that 60 per cent. of male offenders, 38 per cent. of females and two-thirds of young offenders come back before the courts within two years of their release. There is nothing to be proud of about those figures. That is the only general comment I want to make about this very wide-ranging legislation.
More specifically, I should like to follow the noble Baroness, Lady Faithfull, and make a few specific but brief points about how the Bill will affect children and young people. I should first like to mention the provisions which will benefit young people. In this category we have Clause 21, about which I shall not say anything else as it has been referred to by the noble Baroness, Lady Faithfull, using all the experience she has on this matter. It was also mentioned by the noble Lords, Lord Campbell and Lord Meston.
Following the sympathetic and positive approach that the Minister in another place took when being presented with the alternative methods used in examining a child and using a video recording made by a child immediately after the offence had taken place—the Minister in another place looked at these proposals and treated them in a very sympathetic way—I hope that the Minister here will take them up again at Committee stage and improve them.
Next there is Clause 33, which strengthens the criteria under the Criminal Justice Act 1982 governing the imposition of custodial sentences on young offenders. This is a step, although only a very small one, in the right direction towards reducing the numbers of young people in custody. Clause 34 is also to be welcomed in that it removes from magistrates the power to order a young person convicted of an imprisonable offence to be detained for up to four days in a police cell. We agree that a police cell is not a suitable place for a young person.
The last clause in this category of those which benefit young people in this law is Clause 122, in which young people are excluded from the provisions which permit magistrates to remand an accused person for up to 28 days. This seems quite right in that for a young person who is refused bail and remanded into care, time spent in care does not count towards sentence. Therefore it seems quite right that young people should be excluded from these provisions.
Those are the proposals in the Bill which will be slightly to the benefit of young people. Unfortunately the Bill contains several clauses which could have the most dramatic effects on children and on young people and their families. I think it is also disappointing to all of us who are interested in how young people will be affected by the Bill to recognise that there are so many lost opportunities which the Government could have 1330 seized to promote young people's rights and in particular to take much more substantial measures to reduce the growing number of young people receiving custodial sentences. This has been said so often in this House. Indeed, we now have the example of so many other countries which are realising that putting young people into custody will mean that, as the noble Baroness, Lady Faithfull, said, they will become hardened criminals when they are grown up.
Perhaps I may mention one or two clauses which worry me greatly. Clause 92 requires parents to pay fines imposed on juveniles who fail to comply with the requirements in supervision orders and community service orders. One should recognise that in the majority of families parents have a great deal of influence over their children and are able to teach them to respect law and order. However, there are cases, particularly in respect of teenagers, where parents are unable to do so and have little influence on their children.
This often relates to multiple disadvantages experienced by the parents themselves. If this clause is enacted parents who already have problems with their children will be placed in a terrible dilemma. If they want to avoid paying the fine they will be forced into a position of informing on their child who is not co-operating with the requirements under the order and reporting them as being beyond control to avoid paying the fine. Surely such families, which are already experiencing great strain, would be placed in an intolerable position with their children. Single parents would be very much affected in this way. A single parent is more likely not to be totally in control of a child. In this case the relationship between the parent and the child would be immeasurably harmed.
Clause 93 seeks to provide school attendance as a condition in a supervision order. Again, I find this a worrying proposal because if enacted this clause would further criminalise school non-attendance. The reasons for children not going to school are complicated and vary from one individual child to another and need to be dealt with in an atmosphere of trust and co-operation between the parent, the school and the child. It is hard to see how this climate of co-operation and trust can be achieved when in effect the young person has been, so to speak, sentenced to attend school.
The clause also implies a direct and simple link between non-attendance and delinquency when in fact most research suggests that this is not the case and that children refuse to go to school for a multitude of different reasons—because they are being bullied, because they feel lonely there or because they are simply bored. But it has nothing to do with delinquency at all.
Lastly, there is Clause 94. I was sad to hear the Minister say that he welcomed this provision. However, the noble Baroness, Lady Faithfull, and the noble Lord, Lord Meston, seemed to think otherwise. I agree with them that in recent years there has been mounting criticism of detention centres. Calls for an independent inquiry into allegations of abuse and assault at detention centres have been repeatedly turned down. Clause 94 aims to remedy the under-use of detention centres and to make more room in 1331 overcrowded youth custody centres. I understand that the Home Office, in its response to the recent report of Her Majesty's Chief Inspector of Prisons which he made in 1985, has spoken of a number of adjustments which could be made to the detention centre regime in order to develop its positive aspects; that is, to bring its aims more into line with those of youth custody centres.
This being so, surely it would be more logical for the Government to grasp the nettle and abolish detention centres completely. In this regard, I hope that in Committee the Government will look favourably at the proposal aimed at abolishing detention centres and substituting a single sentence for all offenders between 15 and 21 years of age, as described by the noble Lord, Lord Meston.
My last point is in connection with the proposal to strengthen courts' powers to deprive convicted offenders of the proceeds of their crimes and to order the forfeiture of property used in connection with the crimes. Although like other noble Lords I appreciate the aim of ensuring that offenders do not benefit from their crimes, I am a little worried about the manner in which dependants could be affected by these measures. 1332 It must be recognised that it is the dependants, the wife and children, who already suffer a great deal from the imprisonment of the husband. They are left to cope with great financial and emotional problems. Children thus deprived of even minimal financial security may feel alienated and are increasingly at risk of becoming offenders.
In this instance I feel that there should be a safeguard incorporated in the Bill in terms of an order to deprive offenders of the proceeds of their crime, and the court should have regard to the likely consequence of such an order, particularly on any children of the offender. Such a proviso would be essential in cases where there is any doubt that such proceeds or property were obtained as a result of the crime. I look forward to Committee stage when I hope these points which I have brought up and which interest me will be looked at favourably by the noble Earl.
I also look forward to the changes to clauses mentioned by my noble friend Lord Morton of Shuna relating to the criminal injuries compensation scheme. He made some pertinent points about specific examples of how improvements could be made to the scheme.
§ 10.8 p.m.
§ Lord Wigoder
My Lords, it is a convention of your Lordships' House that a maiden speaker is congratulated only by the speaker immediately following him. The fact that that convention has been so widely breached this afternoon and evening is the simplest possible tribute to the impressive contribution of the noble Lord, Lord Irvine of Lairg, to the debate.
This is not the easiest of Bills upon which to make a speech on Second Reading. My noble friend Lord Harris of Greenwich said that he was tempted to call it a rag-bag, with a dash of originality. I was going to call it a hotch-potch, but I bow to his description.
The contributions to the debate inevitably have given the impression at times that there were many distinguished Members of your Lordships' House each riding a somewhat unruly hobby horse in a variety of different directions. In those circumstances, it is not an easy debate to attempt to sum up.
Perhaps it does not help very much to look at the Bill and then decide what it does not do or what it might have done if it were a totally different Bill. As I see it, this is not a Bill to empty the prisons or to remove crime from the streets, highly desirable though those two objectives are. This Bill, it seems to me, is essentially one which seeks to modernise and improve our criminal procedures. Because of that, primarily this is not a Bill on which one can or ought to make party political points. It is a Bill on which those of us who think we may have some small contribution to make should seek to make it together to try to improve our criminal procedures. Therefore I seek to comment this evening in some cases very briefly, only on five of the issues that have been raised.
I begin with Part I of the Bill, which relates to fraud. I say at once that I believe the Government should be given every possible credit for having resisted the temptation to go along with the extremely skilful report of the noble and learned Lord, Lord Roskill, and abolish juries in serious fraud cases. It would have been an easy and popular course to take and the Government deserve great credit for having resisted such a temptation. I add that I observed with interest the comment made by the noble and learned Lord, Lord Denning, at one stage in his speech that jurors ought to be people who understand accounts. I hope he will forgive my saying that if one were to take a random selection of 12 High Court judges, I do not think that every one of them would be able to understand accounts.
The Government are right to adopt the rest of the proposals of the Roskill Report and to take the view that stringent improvements in the evidence and procedure provisions in serious fraud cases should be able to solve the many problems that have arisen without resort to the extreme remedy suggested by the noble and learned Lord, Lord Roskill.
The second matter—I have already mentioned the question of juries—is the abolition of the peremptory challenge. I come by a rather different route to a similar conclusion to that reached by my noble friends Lord Hooson and Lord Hutchinson of Lullington. I could have been persuaded if the Government were to be even-handed about it of the strength of the Government's case. I could have been persuaded that 1334 there is inconvenience in collecting large numbers of citizens together in order that half of them should be sent away without their services being used. I could have been persuaded that there is embarrassment, as the noble and learned Lord, Lord Denning, so rightly said. I could have been persuaded that there is a case for having an entirely random jury. I have never taken the view, although obviously many defendants do, that if a defendant is a left-handed, bald-headed Cockney, for some reason or other there should be either more or less bald-headed, left-handed Cockneys on the jury trying that defendant.
I could have found it difficult to accept that in exercising the right of peremptory challenge defendants are necessarily seeking to secure a balanced jury. I think most defendants—and it is the defendant who has the right to challenge, not counsel—if they were asked what they were doing when their barrister on their instructions made the challenge, would be somewhat startled if it were suggested that it was in order to secure a balanced jury. Of course it is not. They are doing it in order to seek to secure the most favourable jury possible; and there is nothing wrong in that under our present system.
As I say, I could have been persuaded on all these matters if only the Government were prepared to be even-handed and if only they were prepared to say that they would abolish the centuries old right of the defence of peremptory challenge, but they would also abolish the prosecution's right of peremptory challenge, which is called standing by for the Crown.
I do not believe that administrative directions given by the Attorney-General are any answer. Indeed, I had a letter from the Home Office—and I believe that other noble Lords also had one today—which sets out the effect of those directions. It is made quite clear that the Government are not prepared to abolish the right of stand by for the Crown. It is made quite clear that that right will be preserved; for example, so that prosecuting counsel can stand a juror by if he appears on first impressions to be illiterate or undesirable in some way. It is made quite clear that the prosecution will preserve the right of standing by where it has exercised its very great privilege of jury vetting and some matter has come to light that warrants removing a juror.
It is not necessary that it should be done through standing by. I suggest that it can very easily be done by the prosecution challenging for cause not in open court but in chambers where the judge can be told what has been revealed by the jury vetting and the judge could rule upon it. However, as long as the Government are not prepared for the statutory abolition of the right of stand by on the part of the prosecution, I believe that they have no case when they seek to abolish the defence right of peremptory challenge. I am therefore driven to go along with my noble and learned friends in the stance that they take on the issue.
The third matter on which I want to say a few words concerns Clause 29, already referred to many times. If I may say so, that proposal is now really a "goner". I need not say very much about it because, as it stands, it is quite obvious that the weight of opinion in your Lordships' House is solidly against it. It is a naïve proposal in that, at the moment, the Court of Appeal can do precisely what the Government want it to do. 1335 If there is a case today in which a sentence appears to be inadequate, it is no problem whatever, should the Court of Appeal have a similar case in the list within the next seven days, for the noble and learned Lord the Lord Chief Justice to issue guidelines when that case is dealt with. It is naïve and it is impractical. It is impractical because the judge will not be represented. Nobody will know why the judge passed the sentence that he gave. The defendant will not be represented. Why should he bother to be present if he will not be affected in any way by the result?
It is undesirable because, obviously, it involves counsel for the prosecution in matters of sentence. I shall come back to that point in a moment. Furthermore, it completely pillories the judge and the whole system of justice. The Minister, in his opening speech, referred to the present position causing great damage to public confidence. I think that those were his very words. I suggest to him that that is an accurate description of the position as it would be if Clause 29 in its present form were passed by your Lordships' House.
Therefore, I have no doubt that Clause 29 in its present form will go. The real and serious question that has arisen in the course of our discussion is whether there is anything to replace it. A strong body of opinion led by the noble and learned Lord the Lord Chief Justice and many of his very senior colleagues suggests that Clause 29 should go but that it should be replaced by a power given to the Court of Appeal to increase sentence. I suppose that one possible reason for that suggestion might have been that the noble and learned Lord the Lord Chief Justice feels, with some reason, that there is an immense burden of work on the Court of Appeal, that many appeals are verging on the frivolous and that a measure of that nature would serve to discourage a certain number of such appeals. I know that if that were the reason at the back of his mind, he would have said so. I think therefore that we can reject that suggestion completely as having nothing to do with the argument.
The real issue is whether it is a matter of public policy that there should be such a path to increased sentence. There is no need to be too dramatic about it. My first thought, when I heard it put forward, was that we were going down the road taken by certain countries in some parts of the world where a wretched prisoner is given 20 years for some minor piece of alleged disloyalty, is promptly taken off to the Court of Appeal or to the supreme court, ordered to be executed and then executed. I think there is no need to go to those limits. However, I must confess that when I thought of the likely results of the procedure being advocated by the noble and learned Lord the Lord Chief Justice and some of his colleagues, I began to think in exactly the same terms and in almost exactly the same words (without having had any prior consultation of any kind) as those used by my noble friend Lord Hutchinson of Lullington.
Before my noble friend Lord Hutchinson mentioned it, I was thinking that it would be quite outrageous that a man who has undergone a long trial and the agony of a long jury retirement, together with protracted mitigation proceedings, and who then hears 1336 the judge say that it was a case for two years' imprisonment but that on balance it might just be proper to suspend the sentence (and he suspends it) and who goes home, back to his wife and children and rebuilds his family life and his job should find six months later—because that is what it would be—that he is solemnly taken back to the Court of Appeal and told that the judge was wrong in principle, that the sentence should not have been suspended and that he will go to prison straightaway.
I do not believe that any public in this country would wish that to happen. Quite simply, it would be extremely cruel. And it is a form of cruelty which I thoroughly detest. There was this power in the Court of Appeal many years ago. At that time it was exercised very largely by the then Lord Chief Justice, Lord Goddard. Some of us here took part in proceedings where that happened. They were extremely unpleasant, not merely for the defendants (because it may be said that they had brought it on their own heads) but for every member of the Bar who took part and for every member of the public who was present. I do not believe that the judges, apart perhaps from the then Lord Chief Justice, enjoyed exercising that power and I believe that it brought the whole system of justice at that time into substantial disrepute.
I add one final observation on the matter. Of course, if one is going to have a power to increase sentence in this way, it will involve counsel for the prosecution in some way in matters of sentence. It may start off in a very limited way but it is bound to increase. I do not see how one can draw the line and eventually avoid the ludicrous and appalling farce that took place in France recently where, for reasons of state, prosecuting counsel solemnly urged upon the court that it should pass a particularly lenient sentence in a serious terrorist case. Reasons of state are bound to be involved in those circumstances, and that would be a very dangerous path down which to tread.
I mentioned the unpleasantness of appearing in the Court of Appeal in those circumstances. Some of us will remember, in order to advise one's client whether or not he dared go ahead with his case, how desperate we were to know which judge was sitting and who his colleagues were on that day. How was it that sometimes they appeared to be for one in the morning but coming back after what must have been a very unpleasant lunch one suddenly found that the sentence was increased. All the signs during the morning had been that the appeal was going extremely well. It became a gamble and a very undesirable one.
There are two other matters to which I wish to make the briefest of references: first, the extradition proposals have not received quite the careful examination today that perhaps they deserve. I entirely agree with what was said by my noble friend Lord Hutchinson of Lullington. It would be quite wrong that there should ever be cases in which we extradite people to other countries without there being proper evidence, properly proved, in our courts.
The other matter upon which I wish to say one word is that much has been said about one omission from the Bill, and that is the possible power of retrial that 1337 should be given to the Court of Appeal. It has met with widespread support, particularly from the noble and learned Lord the Lord Chief Justice and from the noble and learned Lords, Lord Ackner and Lord Denning. I entirely agree, if I may very respectfully do so, that the Court of Appeal should have an extended power of retrial. But we must draft that power with some care.
It was no pure chance that the only example given by the noble and learned Lords who spoke of the need for such a power was that there might be people who had been wrongly acquitted and that the use of this power might help to ensure that they were properly convicted. I agree with that, but we ought not to forget also—and I am sure that the noble and learned Lords concerned do not forget—that there are some people who have been wrongly convicted, and that the use of this power might help to ensure that they were properly acquitted in a new trial.
There is, I think, very little doubt that on many occasions at the moment the Court of Appeal finds itself inhibited in ordering a new trial. It does not have the power to do so and therefore, rather than quash a conviction, it lets the conviction stand and I believe that the power of retrial would help to avoid that undesirable position.
When, many hours ago now, this discussion began, some comment was made about the fact that the Bill may not come to fruition in the near future. It may be that it will not. I suggest to your Lordships that it is nevertheless important that we do not treat it lightly, that we go into Committee determined to examine all the clauses carefully and to improve the Bill wherever possible, because, sooner or later, many of its provisions will come back to this House. If they do, it is better that they should come back on a well-informed basis after having been improved by your Lordships.
§ 10.26 p.m.
§ Lord Mishcon
My Lords, it seems a very long time since the Minister made his introductory speech to this Bill, a Bill described as a hotch-potch ragbag by two of the principal speakers for the Alliance. One admires the political objectivity which they have shown in such a description. I noted that the noble Lord, Lord Wigoder, said that he intended to keep politics out of this completely. I, with far more objectivity but without trumpeting it before the House, will not indulge in that description at all, but will merely say that this Bill has merits in some parts of it and demerits in another, and it is our hope that the House will turn out a better Bill than it now is.
Having said that, perhaps I may quickly move to a pleasure that I have from this Front Bench. It is the first time that a member of the Front Bench on this side has been able to do it. My noble and learned friend Lord Elwyn-Jones looked forward with keen anticipation to the maiden speech made by my noble friend Lord Irvine of Lairg. I have the privilege, having heard that speech, of saying how much we all admired it and how much we look forward to his future contributions.
1338 The Criminal Injuries Compensation Board has been mentioned in the course of this debate, and very learnedly by my noble friend Lord Morton. My memory goes back, if your Lordships will permit a personal anecdote, to the maiden speech that I had the privilege of making in your Lordships' House some nine years ago, when I urged in a debate which took place at the instance of my noble friend Lord Longford, in connection with those who suffered from crime, that the voluntary scheme as it then was, a scheme that came out of the grace of Her Majesty, should be turned into a statutory scheme.
Until I leave your Lordships' House for the house of the Lord himself, I shall always try to think that that speech that I made nine years ago is responsible for that part of this Bill which creates the statutory scheme of a Criminal Injuries Compensation Board. I know it to be a dream of mine with no reality at all, but maybe the maiden speaker in this debate will think that his maiden speech will have the same effect in possibly a lesser period of time than nine years.
Many interesting matters of principle have been discussed in the course of this debate, and it is matters of principle about which we ought to be talking at Second Reading. If I may, I shall move at once to Clause 29. It is quite right that if one listens to the speeches made this afternoon and tonight, coming as they do from one who has had the honour of being a Lord Chancellor in this House, one who had the honour of being Master of the Rolls, from the Lord Chief Justice and from Lords of Appeal in Ordinary, one would think that Clause 29 has died a respectable death. In crushing a worm, one must be careful that a serpent does not rise in its stead. I listened with some fear to some of the alternatives to a dead Clause 29 that were being put forward.
One of the alternatives suggested was not simply that in a case coming before the Court of Appeal in which someone was appealing against sentence that court might have the power to increase the sentence. It was, as I heard the alternative, that the prosecution itself would have the power to appeal to the Court of Appeal. I listened with great care to the noble and learned Lord, Lord Ackner, as one always does when he speaks in debate, with a brevity which he so courteously ascribed to something he had done on a previous occasion. I assure him that I bore no malice whatsoever. I also listened to the noble and learned Lord, Lord Denning. Both of them said that they had changed their minds concerning opinions whch they had previously held in regard to giving such powers to the prosecution.
I shall not repeat arguments which were advanced about a Sword of Damocles hanging over someone's head because the prosecution might appeal against a sentence. I certainly adopt that argument. However, I am going to introduce an additional argument. Judges are human beings, as we all know. The temptation to think, when adjudicating what a sentence should be, that one had best not be too lenient because the prosecution might appeal will lead, if I may say so with great respect, to judges trying to harden their hearts against pleas in mitigation.
The noble and learned Lord, Lord Denning, thought that he might, in later years, have altered a sentence of 1339 nine months' imprisonment to two years' imprisonment in a case where a man had crossed over the road and quite inadvertently and tragically killed two people. I have no doubt that he will carry that memory with him to the end of his days. The noble and learned Lord said that he would have increased the sentence, having escaped from the oratory of a defending counsel. How much more would he have hardened his heart if he had thought that the prosecution might appeal against the sentence? I wonder whether he might not have made the sentence even more than two years.
Why have two noble and learned Lords altered their minds after this passage of time? I suspect that it may be because they have left their sentencing years far behind them and are in the splendid atmosphere of either the Court of Appeal or the Court of your Lordships' House. I believe that it would be safer to leave their views where they formed them as humane judges of first instance, when they dealt with the human beings in front of them in the dock. I therefore leave Clause 29 with the humble prayer that when someone moves in your Lordships' House that that clause do not form part of this Bill, there will be no amendments such as those introduced in today's debate, however learned the source of those amendments.
In so far as concerns jury challenge, again this is a matter of principle which was raised in most interesting speeches that were made in this debate. I do not want to repeat points that have already been made to your Lordships with great lucidity and force. I want only to add one point which I did not hear made. If it was made and I am merely repeating it, I apologise to the noble Lord who made it.
To challenge with cause is a very difficult operation. One of the speakers in your Lordships' debate—shall I be forgiven for having forgotten for a moment which one of your Lordships it was?—talked in terms of it being quite justifiable and right that somebody who was black should oppose the fact that there were too many white people on the jury. I assume that it was equally meant that it was quite right for somebody who was white to oppose the fact that there were too many people who were black on the jury.
A right of peremptory challenge because an accused may think that he is not going to get a fair trial with the initial composition of the jury is a perfectly human challenge which causes no hurt and causes no racial tension. I was envisaging somebody either having the courage to say it, or not having the courage to say it, and saying, "I object to two jurors sitting over there, they are black and there are already five black jurymen and I cannot have seven", or vice versa.
I think that that is another argument against the abolition of peremptory challenge. I add one last argument and it is this. If you have a great tradition going over the centuries in connection with the rights of defendants, I believe that, unless there is a most convincing case for doing away with that tradition, which is the right of a defendant, your Lordships will want to walk with a timorous step. We do not exist in this House of great tradition to undermine or destroy traditions if they have been of value over the centuries. 1340 That is where I leave the general principle of jury challenge, if I may.
Perhaps I may take up the next couple of minutes in a speech which your Lordships have been kind enough to view with some amount of patience so far in considering the question of fraud and the way that this has been dealt with in the Bill. Perhaps I may say at once that we on this side who have witnessed, as all noble Lords have, the cases of Lloyd's, will remember how the noble Lord, Lord Windlesham, moved his Bill with great ability and much sympathy from your Lordships. We talked on all sides—and I had the privilege of doing so from these Benches—of the integrity of Lloyd's, and its example to the whole commercial world of insurance. We all did so with great sincerity. It must have been painful to the noble Lord, Lord Windlesham, and others who have taken a meritorious part in keeping the name of the City and the name of Lloyd's clean, when those diabolical frauds occurred. We have had to witness the fact that as yet no prosecutions have been brought.
There have been other frauds since. The noble and learned Lord, Lord Denning, spoke in terms of the ignorance of jurors. That was not the reason why prosecutions were not brought. As I understand it, the reason was the difficulty in regard to evidence and the difficulty arising from the complexity of the cases involved, relating not only Lloyd's but to other examples of serious fraud, and the fact that there were literally not the people in the DPP's office who had either the time or the expertise to examine these cases and prepare them in a way which would have merited their being brought and which would give a chance, a proper chance, of obtaining guilty verdicts.
I mention that point for this reason. We are setting up a Serious Fraud Office. It is absolutely right that we should. But let us not make the same mistake as the Government made with the prosecution service. That, too, was an admirable suggestion. We all backed it. We said we hoped that the prosecution service throughout the kingdom would employ the type of people who would be able to examine police cases, decide whether or not there should be prosecutions and conduct those cases with ability. The salaries first offered were such that the quality of the service was not what any of your Lordships would want it to be. It is now improving and the conditions are a little better.
I say this to the noble Earl, the Minister: please do not let this Serious Fraud Office become a mockery. You will need men of great expertise to be able to conduct that office properly if the object of the exercise in the Bill is to be achieved. That means getting people who do not want just to try to learn something and then go elsewhere. A stable series of officers who are both capable and who will make it their career is required for that office. I ask the Minister to consider that on behalf of the Government.
My final comment on the fraud aspect—I could say much—is that we have to be a little careful. It is terribly easy when one is speaking about drugs—and we all hate the suppliers of drugs and regard them as being almost, if not completely, murderers—and when we come to legislation to say that because we regard this offence with such loathing we are going to dispense with some of the provisions that might in fact stop- 1341 convictions in ordinary criminal cases and make a special case of those who deal in drugs. Such precedents will suddenly become part of our criminal law if we are not careful.
We are doing the same in regard to serious fraud. We are doing something with the right of silence. We are not describing in the Bill what is a serious fraud. We speak about it being complex and about it being serious. We give terrific powers of investigation. We do not define what will start off that investigation and what it means. In the Police and Criminal Evidence Act we defined an arrestable offence as something giving great financial loss to the person concerned or great financial gain to the criminal himself. We went through that definition. We had doubts about it but we defined it before we gave the powers of arrest. We must do the same about investigation.
As has been said, the Committee stage will be interesting but it will be vital in order to make this a better Bill.
§ 10.45 p.m.
The Earl of Caithness
My Lords, we have had a most interesting and valuable debate, much of which has taken place on the high ground of principle, which is as it should be. It has benefited also from the practical experience of our courts which many of your Lordships have brought to our proceedings. I should like to join in the tributes which have been paid to the noble Lord, Lord Irvine of Lairg, for what, as others have said, was a most thoughtful and stimulating maiden speech. I shall read it with interest tomorrow to see how he managed to keep it uncontroversial when the subject with which he was dealing is so controversial.
Three issues have dominated the debate and I shall concentrate on them. I hope that I shall also have the time to deal with other points raised by your Lordships, but as so many have been raised I shall be unable to answer them all. The three issues are: references of sentences to the Court of Appeal, the abolition of peremptory challenge and the measures proposed to implement the Roskill report. I shall begin with this first, greatly helped by the valuable contribution of the noble and learned Lord, Lord Roskill, and encouraged by the strident support of the noble and learned Lord, Lord Denning.
I was a little surprised that the noble Lord, Lord Hutchinson of Lullington, should say in effect that the proposed SFO powers were oppressive. I do not believe that they are disproportionate to the task facing those charged with the investigation of the most serious and complex frauds. They are well precedented in companies' legislation and in the Financial Services Act. In debates in another place, my honourable friend the Minister was able to make some important adjustments which went a considerable way towards meeting concerns which had been expressed. The noble Lord said that the powers provided for no right of silence. Under the Bill there is a right of silence in the court, the point that the noble and learned Lord, Lord Roskill, took up and one to which we have given much consideration.
As the Bill stands, evidence obtained by the SFO under its compulsory powers would not under Clause 1342 2(8) be able to be used against the person providing it. The reasoning behind that was that, while it seemed entirely sensible to enable the SFO to require suspects to answer questions as a means of furthering the investigation, to allow those answers to be used in court might be thought to infringe the principle, which is deeply rooted in our system, that the accused should not be required to incriminate himself. Nevertheless, that is the one respect in which we have not followed the precedents provided in companies and financial legislation.
When an inspector appointed by the Department of Trade and Industry uses his powers to require answers in the course of an investigation of a company's affairs, there is nothing to prevent the answers being used in any ensuing criminal proceedings. Companies investigations are of course a narrower field than that in which the SFO will be operating and less directly connected to criminal investigations and prosecutions. The point the noble and learned Lord raised is important, and I should like to reflect upon it further. We do not want the SFO's effectiveness to be limited by vulnerability to the suspect exploiting the fact that his answers cannot be used in evidence; for example, by giving the court a completely different story.
My noble friend Lord Windlesham asked how the SFO would work with the police. In London, the designated police officers from the Metropolitan and City Company Fraud Department will work with the SFO. Outside London, effective practical arrangements will be made on a case-by-case basis involving close contact between the chief constable of the relevant area and the director of the SFO. The usual chain of police command and control will be maintained. We seek to build on the work that has been done by the FIG. I believe that the SFO proposals will be of enormous benefit.
The noble Lord, Lord Wigoder, was pleased that we had not followed the route taken by the majority of the committee, which was to abolish jury trials, something that the noble and learned Lord, Lord Denning, thought that we could have introduced. We have not ruled out for all time the possibility of such a tribunal. We believe that the weight of evidence in the report, even though it is minority evidence, is such that for the time being we should stick with jury trials, as I said when I opened the debate.
I turn to Clause 29 and lenient sentences. This has produced some very stimulating debate. We have, as the noble Lord, Lord Mishcon, said, the change of mind of two noble and learned Lords, Lord Denning and Lord Ackner; and indeed the change of mind of my noble friend Lord Campbell of Alloway over two years. They are supported in that claim for a prosecution right of appeal by the noble and learned Lord, Lord Lane, and the noble and learned Lord, Lord Roskill. Against that is a formidable array of QCs and others with great experience in the legal world: the noble Lords, Lord Harris of Greenwich, Lord Hutchinson of Lullington, Lord Morton of Shuna, Lord Meston, Lord Wigoder, and the noble Lord, Lord Mishcon. Indeed, my noble friend Lord Windlesham felt that things were probably better as they are but would be happy to listen to the case for a prosecution right of appeal.
1343 I listened with great interest to the arguments put forward by the noble and learned Lords about this matter. Indeed, my noble friend Lord Campbell of Alloway courteously gave notice that in Committee he would table an amendment to the effect that he described. We shall no doubt have an opportunity to discuss the matter more fully then.
As I said in introducing the debate, we hesitate to go down the path of a prosecution right of appeal. The main reason is that to do so would represent a major change in the role of the prosecution. As several noble Lords have reminded us, by long tradition it is no part of a prosecutor's function to seek to affect the sentence to be passed. One must also consider the position of the offender himself. The noble Lord, Lord Morton of Shuna, made what seemed to me a telling point when he referred to the danger of imposing a more severe sentence after no more than a paper consideration of the case. If we were to go down the road recommended by the noble and learned Lord and others, more practical questions would also arise.
I do not wish to dismiss out of hand such a proposal from such distinguished and experienced speakers. My right honourable friend will want to consider and reflect very carefully on what has been said today. If I may say so, however, several of your Lordships have done less than justice to the proposal which is in the Bill. A rather similar position, under which points of law arising in acquittals can be referred by the Attorney-General for the opinion of the Court of Appeal, has operated satisfactorily since 1972. There is therefore a good precedent there.
Several of your Lordships have said that the Court of Appeal already takes the opportunity, in giving judgment in appeals by defendants against sentence, to offer general guidance to the lower courts on sentencing matters. The Government very much welcome this practice, which has flourished in the time of the noble and learned Lord, Lord Lane, as Lord Chief Justice. But when there has been a case which raises genuine issues of concern to the public it is surely artificial and unsatisfactory that the court should have to comb through its list to find a case which is a suitable vehicle for the necessary guidance. It may not be possible to find a case which bears more than indirectly on the issues which have been raised.
The clause provides a means by which the court can address the question of sentencing principles in the context in which they have arisen and give guidance for the future. The public are not generally harshly retributive about sentencing, but when mistakes occur they want to be clear that lessons will be learnt for the future.
Before leaving lenient sentences, I was a little surprised by what I heard the noble Lord, Lord Wigoder, say. I must admit that having combed through the debate on the Address and read in particular his words on 18th November I thought that he very clearly was in favour of the proposition that we are putting forward in the Bill. However, I shall read what he has said today because that is clearly very different.
Turning to peremptory challenge, on which we have had another lively debate, I do not intend to respond in detail to points which have been made, although we 1344 shall want to go into them fully in Committee. However, perhaps I may respond to one point which the noble Lord, Lord Hooson, made. The peremptory challenge is valuable because it provides a means by which the accused can influence the balance of the jury. The question of whether it will help increase the confidence of the black defendant in our system of justice if he were tried by a jury which includes one or more black people, or the young defendant if he did not have to face a wholly middle-aged jury, is a serious one which I do not dismiss for a moment. But I would ask your Lordships to pause over its implications.
Do we really want to construct a system of jury selection on the assumption—explicit or implicit—that any one of our citizens cannot expect a fair trial from 12 of his fellow citizens, selected as the present arrangements provide? Even if we did, does peremptory challenge really help? Peremptory challenge allows the defendant to challenge people off the jury on a very superficial basis. It does not ensure that people sympathetic to or representative of the defendant's background will come on to the jury. Our view, as I stated at the beginning of this debate, is that it is reasonable as a matter of principle, not—as the noble and learned Lord, Lord Elwyn-Jones implied—because of any effect, real or imagined, on convictions or acquittal, that the accused should take the jury as he finds it. But clearly today's discussion has been a foretaste of what will be a lively debate at the Committee stage.
I say to the noble Lord, Lord Wigoder, that I think there is a distinct difference between peremptory challenge and the right of stand by. As he knows better than I, the prosecutor is certainly under no duty to use stand by to further the Crown's tactical interest and indeed it is discouraged from doing so. Stand by is therefore less frequently used, and this was borne out in the CPS survey which showed that it was used at about 5 per cent. to 6 per cent. of trials, compared with 22 per cent. of peremptory challenge.
Turning from the three main points to some other points, I am sorely tempted to follow the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Harris of Greenwich, down a long debate on crime, the recorded crime and the prison population, but I think it would be wrong for me to do so at this stage of our evening's discussion. Perhaps on another occasion we can pursue the matter further.
I would just pick up one point which the noble and learned Lord made about imprisonment of fine defaulters. I believe that custody must remain available as a last resort for wilful refusal to comply with the order imposed by a court. The court already normally has to satisfy itself after a means inquiry that the non-payment is deliberate and only resort to custody if all other alternatives have not worked. Clause 42 of the Bill reinforces that principle by spelling out what those alternatives are. I believe that will be very helpful.
The noble Lord, Lord Harris of Greenwich, kindly complimented us on the work undertaken on Fresh Start. As the noble Lord and indeed other will know, much depends on the POA ballot in early May, in which over 50 per cent. of the membership have to vote for such a change, but I believe that it would be 1345 a very sad day for the prison service if they were to turn down this opportunity. I say no more to the noble Lord, Lord Mishcon, at this stage.
With regard to prisoners held in police cells, a point mentioned by the noble Lord, Lord Harris of Greenwich, and indeed the noble Baroness, Lady Ewart-Biggs, of course we very much regret the need to hold some prisoners in police cells and readily accept that these are totally inadequate for the prolonged detention of prisoners. I am conscious that prisoners held there do not receive the full range of facilities to which they would be entitled in prison, although I am aware that the police are doing everything possible under the most difficult circumstances to provide the best conditions they can. The need to hold prisoners in police cells is a direct consequence of the steady rise in the prison population, especially the untried prisoners in the South-East. But I believe the building programme that we have in hand, the biggest this century, will make good inroads into this problem.
On the Court of Appeal power to order a retrial, a point raised by the noble and learned Lord, Lord Roskill, supported by the noble and learned Lords, Lord Lane and Lord Ackner, backed by my noble friend Lord Campbell of Alloway and the noble Lord, Lord Wigoder, we issued a consultation document last month inviting comments on the proposal to widen the Court of Appeal's power to order a retrial, as the noble and learned Lord urged. In the light of comments we received, we shall consider whether to bring forward an amendment to that effect at a later stage of the Bill.
The noble Lord, Lord Irvine of Lairg, was concerned, I think, about the difference in the provisions for the Drug Trafficking Offences Act and the confiscation provisions as put forward in this Bill. When the Act was before us last year, there was agreement in both Houses that the special importance of the cutting off of the circulation of large sums of money in the drugs trade demanded the most stringent measures, not all of which would be appropriate in the context of other crimes. I can assure the noble Lord that the Drug Trafficking Offences Act is flexible enough to allow smaller cases to be dealt with more speedily and directly when it comes to evaluating and confiscating offenders' proceeds.
My noble friend Lord Campbell of Alloway raised the very important question of admitting video recordings of children's evidence, a point picked up by my noble friend Lady Faithfull and by the noble Baroness, Lady Ewart-Biggs, and the noble Lord, Lord Meston. I listened with very great interest to what they said about this. The Government's aim is exactly their aim, which is to make it easier to bring to justice the perpetrators of these awful crimes while avoiding adding to the child's ordeal. The proposal which is already in the Bill to make it possible for the child to give evidence at the trial through a live video seems to us the single most helpful step that can be taken.
We also very much admire the work which the Metropolitan Police are undertaking in Bexley, experimenting in the use of video recordings in the investigation of child abuse. The question is whether when such recordings have been made they should be readily admissable in any subsequent trial. The 1346 recording would then need to supplement the child's oral evidence at the trial rather than replace it, because, as my honourable friend the Minister of State has made clear, we would not be ready to contemplate denying the accused his right to cross-examine such a key witness. There is perhaps a risk that cross-examination of the child would focus on trying to establish inconsistencies with the recording. The arguments are therefore not completely clear cut and that is why we think it is worth setting them out in a little detail in the discussion paper which I mentioned earlier and which I hope will be published next month.
The noble Baroness, Lady Phillips, asked for money for victim support schemes. I can tell her in her absence that this year's Home Office grant to the national association is £160,000. But also the good news is that a further £9 million will be made available over the next three years to strengthen local voluntary victim support by providing funding for salaried coordinators for the majority of schemes.
I am grateful for the kind words that the noble Lord, Lord Hutchinson of Lullington, said about my honourable friends in another place. He generally welcomed the Bill, as did so many of your Lordships. But he again said that there were difficulties and raised in particular the point on extradition: that the loss of the prima facie requirement would ruin all existing safeguards. He raised a point on the European Convention on Extradiction. It is certainly not the intention of this Government to enter a reservation to the European Convention on Extradition whereby the UK could require a requesting state to make a prima facie case. Where we have any reason to, we shall be able to require a prima facie case in our treaties, but we see no reason in relation to European convention countries. My right honourable friend the Secretary of State has a right to refuse surrender in any case and in particular where the request is not made in the interests of justice. I hope that that goes some way to satisfying the noble Lord.
My noble friend Lord Mountgarret raised a matter that was debated at some length in another place, capital punishment, and I am sure he will wish to draw that to our attention during the Committee stage.
There is perhaps no greater expert in your Lordships' House than the noble Lord, Lord Morton of Shuna, when it comes to general criminal injuries compensation schemes. He raised a number of detailed points which I look forward to discussing with him at the Committee stage.
I just take up one matter to give the noble Lord the assurance that he seeks with regard to the board staff. There are no plans to change the current arrangements which have worked well over the years. However, as he will know from his reading of the Bill, there is flexibility for the board to engage its own staff if circumstances so require.
The noble Lord, Lord Meston, raised many important points. One which he singled out concerned the confining of anonymity to victims in rape cases. We do not believe that anonymity is necessary or justified for the adult victims of other crimes. The general rule is that court proceedings are conducted openly, and it seems right to hold to that principle. We believe that rape is a special case because the prospect 1347 of being identified is such a significant and particular disincentive to victims to report what happened to the police.
In an interesting talk on young offenders, my noble friend Lady Faithfull asked about the breach of supervision orders, as did the noble Baroness, Lady Ewart-Biggs. Clause 93 widens the powers of the courts when dealing with a breach of the requirements of a supervision order. At present the sanctions for failure to observe these requirements are very limited—essentially a fine or an attendance centre order.
The Magistrates' Association represented to us that the courts would be encouraged to make fuller use of the strengthened supervision orders instead of custody if more substantial sanctions were available. That seemed to us a persuasive argument. We were, however, conscious of the risk that widening the range of sanctions would increase the use of custody overall. The wider powers are therefore to be available only in relation to the special strengthened orders requiring participation in schemes such as intensive intermediate treatment and where the order was explicitly made as an alternative to custody. I look forward to discussing at Committee stage the point raised by the noble Baronesses and also by the noble Lord, Lord Meston, in regard to a single generic sentence.
As I said in opening the debate, the Bill covers a very wide range, but if I were to pick out two general themes they would be these. First, the Bill strikes several severe blows against organised serious crime. The provisions on fraud, on the confiscation of offenders' assets and on extradition will each in different ways, and if applied with skill and resolution, make life more uncomfortable for the professional criminal. Secondly, there are the provisions I have mentioned which affect the position of the victims of crime. They are important in themselves but their wider significance is as part of a general realisation that the system should be much more responsive to the needs and interests of victims. On one or two specific points the debate has uncovered striking divergencies of view which we shall no doubt pursue further at the Committee stage. I do not underestimate the importance of these differences nor the strength of feelings which lie behind them, but I have been much heartened by the wide measure of support that has been shown for the Bill as a whole. On that basis, I ask your Lordships with confidence to grant it a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.