HL Deb 29 January 1990 vol 515 cc11-8

3.4 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 24 [Rights of audience]:

The Lord Chancellor moved Amendment No. 139ZG Page 18, line 37, leave out ("only").

The noble and learned Lord said: With this amendment I should like to speak also to Amendment No. 139ZH. The two amendments seek merely to correct the grammar in the drafting of the clause, which is capable of improvement and which may give rise to misunderstanding. The amendments clarify the fact that a person shall have a right of audience before a court in relation to any proceedings only in the cases listed in subsection (2) and not, a person shall only have a right of audience before a court", as opposed to having a right to conduct litigation or in any other relations in respect of that court in the cases listed. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 139ZH: Page 18, line 38, after ("proceedings") insert ("only").

The noble and learned Lord said: I have spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Lord Renton moved Amendment No 139ZJ: Page 18, line 40, leave out ("is granted a") and insert ("has a subsisting").

The noble Lord said: The amendment is grouped with Amendment No. 139ZK. Now that the two previous amendments have been wisely moved by my noble and learned friend, subsection (2) will read as follows if my two amendments are also accepted: A person shall have a right of audience before a court in relation to any proceedings only in the following cases: (a) where he has a subsisting right of audience before that court in relation to those proceedings granted by the appropriate authorised body". The clause then gives another circumstance in which there would be a right of audience.

The drafting of paragraph (a)(i) of subsection (2) would read better if my amendments were made; but the fundamental reason I am putting them forward is that, if a person ceases to be entitled to exercise a right of audience because of a disciplinary step that has been taken in relation to him resulting in expulsion or suspension by the relevant authorised body, clearly the statutory right granted by Clause 24 should lapse. I should have thought that that was a simple proposition which should be reflected in the drafting. If my amendments make that point clear, I hope that they will commend themselves to the Committee. I beg to move.

Lord Campbell of Alloway

I support the amendment. As a matter of precaution it is clearly right that the word "subsisting" should be incorporated, although it may not be strictly necessary.

The Lord Chancellor

There is nothing between my noble friend and I on the policy of this matter; it is just a question of how it is effected. It is intended that the authorities' disciplinary powers should be preserved. If my noble friend will allow me, I shall consider how best this should be done. I am grateful to him for putting these amendments down.

Lord Renton

I am so glad to find myself in agreement with my noble and learned friend. I am grateful to him for his further offer of consideration and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 139ZK not moved.]

Lord Hutchinson of Lullington moved Amendment No. 139A:

Page 19, line 11, at end insert — ("(2A) Subsection (2)(e) shall not extend to appearances as, or on behalf of, a Crown Prosecutor in relation to any application relating to bail in criminal proceedings,").

The noble Lord said: This amendment seeks to rectify what I suggest is a quite unjustifiable provision in the Bill. Clause 24 makes it clear that a person may only have a right of audience in relation to any proceedings if granted such a right by an authorised body which must be designated in accordance with the complex provisions of Clause 26 and Schedule 4.

Tucked away in Clause 77 —and no doubt this clause will be reached at some time in the middle of the night —one sees that bail applications are dealt with. It is proposed to give the Director of Public Prosecutions a privileged exception to the clause. That is, a power to designate non-qualified clerks or officials employed in the prosecution service to have rights of audience when bail applications are made to a judge in the Supreme Court, whether in the High Court or in the Crown Courts. That is, applications for bail or for the varying of bail conditions.

In due course, I shall oppose the Question that Clause 77 stand part of the Bill. But even if the Committee were to agree that that immediate exception is unwarranted, Clause 24(2)(e) appears to allow the same thing to occur, as it were, through the back door. If Clause 77 is to go, then this door should also be closed. It is for that reason that I suggest that this is the time for the Committtee to debate the principle which is involved.

The Act that created the Crown Prosecution Service —the Prosecution of Offences Act 1985 —made it clear that the conduct of all proceedings in criminal matters was to be in the hands of qualified lawyers. However, because of underfunding and the continuing difficulty of obtaining sufficient qualified staff, the DPP began using more and more unqualified clerks to carry out work that should have been done by professionally qualified staff. Eventually, in 1988, he was taken to court. The Divisional Court held that what he was doing in his office was ultra vires and unlawful.

In this Bill the Government seek to override that decision of the Divisional Court. They seek to override the terms of the Prosecution of Offences Act, and to override this clause and Schedule 4. They are giving the DPP the right to grant rights of audience to any member of his staff in a crucial area of public interest: the granting or refusing of bail.

Decisions on bail raise acute questions of personal liberty on the one hand and the public interest on the other. With current delays, a refusal of bail may mean the equivalent of a sentence of imprisonment of one month, six months, nine months or 12 months, even up to two years, for a person who has not even been tried. Equally, a grant of bail to the wrong person may result in the commission of serious offences against the public before a trial is reached.

The most recent figures for 1988 show that 48,000 people were remanded in custody awaiting trial. Of those, 19,000 were ultimately acquitted or given non-custodial sentences. That is, 40 per cent. of those persons who had been remanded in custody. In that year, 19,000 people served periods of imprisonment, none of whom was sentenced by a court of law; and, as the inspector of prisons has repeatedly pointed out, they served their time in the worst conditions of overcrowding in the whole prison service.

This is a shocking state of affairs. It shows that something is radically wrong with our procedures relating to applications for bail. In themselves, those figures indicate that it would be absolutely the wrong moment for the Divisional Court and the statute to be overriden in this way. The handling of these applications is of paramount importance. At this early stage in the process, the onus rests pre-eminently on the prosecution to provide the court with all the relevant and accurate information on which to base its considered opinion.

Surely presentation calls for a professional advocate. It involves, among other things, a full knowledge of the case; the seriousness of the charges; the likelihood of conviction; the likelihood of a custodial sentence; a detached assessment of the police evidence; what reliance is to be placed on the confessions which are alleged, and so on; the likelihood of witnesses being interfered with; the legal aspects of the case; the sufficiency of evidence; and points of law on which the whole case may founder in the end. The advocate at that stage must be ready to cross-examine defence witnesses who are called, and to test and to reply to submissions made on behalf of the applicant, often by a defence advocate of great experience.

Competence, experience and knowledge are all essential. The applications are made in chambers where no transcript is kept and of course the public are not present. It is important therefore that in such proceedings, where the liberty of the subject is an issue, the applications should be scrupulously and professionally handled.

Paragraph 3.18 of the White Paper says that this work has hitherto been entirely satisfactory. I do not know what "hitherto" means; it must mean before the creation of the CPS. I do not know where the noble and learned Lord finds the evidence that such work was entirely satisfactory. From my own experience, and what I have heard, it is precisely the opposite.

No doubt the provision appears in the Bill at the behest of the DPP. We all know that the CPS is hopelessly understaffed and overworked, and that using unqualified clerks and other staff would no doubt lighten the load. However, the White Paper says that to use clerks in this way, is an efficient use of resources". That is surely a chilling phrase and I am afraid that it is indicative of much of the thinking behind the Bill. What the phrase really means is that because of chronic underfunding, the Crown Prosecution Service cannot fulfil its statutory duties. So the right to use unqualified staff is sought at the expense of the public and the proper administration. I beg to move.

Lord Campbell of Alloway

I wish to support the amendment for every reason given by the noble Lord, Lord Hutchinson. It is difficult to make a good bail application. It is almost as difficult as making a good plea in mitigation. It affects the liberty of the subject. I ask my noble and learned friend the Lord Chancellor to keep an open mind, as he always does, on the merits of this problem. I wish to advert briefly to the problem —this is a purely personal problem —which arises as regards Clause 24(3). I simply do not know what the words, for reasons which apply to him as an individual", mean. I do not know what they could mean or how they could be interpreted.

It appears that we are to equate the most experienced Silk at the Bar with some kind of clerk employed by an authorised body. If such be the new egalitarian approach so be it, but the following questions arise. What do the words, for reasons which apply to him as an individual", mean? Is it right that in anything which concerns the liberty of the subject there should not be some safeguard for proper, efficient, informed and totally expert representation?

Lord Mishcon

In rising to support the amendment I do not intend to repeat all the good reasons that were advanced so eloquently by the noble Lord, Lord Hutchinson. I merely add another reason for submission to the Committee, which is that one of the main reasons for setting up the Crown Prosecution Service, with which everyone in this Chamber agreed, was that there should be an effective service independent of the police which would make judgments on a professional basis. We thought that such judgments would therefore be seen to be fair as well as, we hoped, actually being fair. It requires a great deal of courage, even if a clerk had the necessary experience, to go against the view of the police that bail should be opposed. It needs a professional man with professional experience and knowledge to make that important decision. I add that as another reason to the many cogent reasons which were advanced by the noble Lords, Lord Hutchinson of Lullington and Lord Campbell of Alloway.

Lord Renton

It is a tradition of the Bar that when prosecuting we should never be persecutors. That tradition has been followed, generation after generation, as a result of the training and upbringing of members of the Bar. I am not saying that those who have not had that training are incapable of learning, but if we want to be sure that justice is maintained and that the wise practices which have prevailed in the past are continued, we must step very warily. I wish to support this amendment for that reason.

I wish to congratulate the noble Lord, Lord Hutchinson, on spotting the fact that unless his amendment to Clause 24 were made, difficulties would arise when we came to leave out Clause 77 which he proposes that we should do. In order that we may keep an open mind on Clause 77 we need to have this amendment here now. The other point I wish to emphasise —this point has already been made —is that surely disappointing experience has shown that the Crown Prosecution Service already has more than enough to do preparing cases without adding to those who have that responsibility the burden of appearing in court. I think that my noble and learned friend would be very wise to accept this amendment or something like it.

Lord Wigoder

I wish to add one brief observation in support of my noble friend Lord Hutchinson. It is quite right and natural that emphasis should be placed upon the fact that great hardship can be caused to a defendant if his application for bail is wrongly refused. Equally, as my noble friend has mentioned, there is a matter of great significance to the community involved here because there have been cases, many of which will occur to the minds of Members of the Committee, where defendants who have applied for bail have been released on bail and have committed serious offences while on bail. The only inference I draw from those two facts is that the judge who is trying the issue is entitled to all the help he can get from both sides. That means in this case the help of professionally qualified people to assist him in coming to what is often a difficult conclusion.

Lord Coleraine

I also wish to support the amendment of the noble Lord, Lord Hutchinson. I believe that the experience of all solicitors who practise in the criminal courts, as I do not, leads firmly to the conclusion that it is absolutely vital that those who make decisions whether or not to oppose bail and those who present the case to the court against bail should be suitably qualified people and not the kind of people envisaged by this clause.

Baroness Macleod of Borve

I also wish to support the noble Lord, Lord Hutchinson. I feel strongly that in this particular case of bail, after having for many years tried to solve the problem myself, it is vital for the man or woman concerned that he or she should have legally qualified representatives, especially in the case of the judge in chambers where, as the noble Lord has said, no members of the public are admitted and very few notes are kept. Those two factors together make it vitally important that this amendment should be added to the Bill.

Lord Murray of Epping Forest

The noble and learned Lord the Lord Chancellor has throughout our discussions rightly impressed on us the fact that one of the central purposes of the Bill is to improve the service to what he and I prefer to describe as the client but which many people refer to as the consumer. I should have thought that in this context the anxieties that some clients or consumers may feel that their case may be put in a second rate way should be a cogent thought in all our minds. From the point of view of the chap who has to try and get bail, he is entitled to the best counsel going. He would have little confidence in persons whom the Bill proposes to allow to conduct cases.

The Lord Chancellor

I understand the matters that have been raised as regards Clause 77. Some Members of the Committee may be under the apprehension that I am proposing in Clause 77 to allow a defendant to be represented in this way. Clause 77 allows the Director of Public Prosecutions to designate certain officials employed by the Crown Prosecution Service who are not legally qualified to make representations in bail applications if acting on the instructions of a Crown Prosecutor. In other words, the Crown Prosecutor would be in charge of the situation but the person designated by the Director of Public Prosecutions would be able to present the application, even if he were not qualified. That is the purpose of Clause 77.

Clause 24 is certainly not appropriate to cover that matter. Clause 24(2)(e) is intended to deal with a solicitor's clerk —that is, a clerk employed by a solicitor — or corresponding employee of a recognised body". The latter refers to a solicitor's incorporated practice. I submit to the Committee that that clause could not cover a person employed as part of the Crown Prosecution Service. Such a person would not come under the definition of a solicitor's clerk.

The rights of audience preserved under Clause 24(2)(e) are rights of audience for solicitors' clerks in chambers in the High Court in circumstances which have existed for very many years and which were confirmed as long ago as in the case of Vimbos Ltd v. Meadowcroft in 1901. There is no intention whatever of Clause 24(2)(e) applying to that. The idea is that the matter should be dealt with in an appropriate substantive clause, such as Clause 77. I have heard what has been said on the matter covered by Clause 77. I should certainly like an opportunity of conferring further upon it.

As to this particular clause, in my submission the person who is described in Clause 77 is not a person who would come under the category of a solicitor's clerk or corresponding employee of an incorporated practice within the meaning of the clause.

3.30 p.m.

Lord Mishcon

Would the noble and learned Lord agree that whereas an "authorised body" is defined in the Bill, that is not true of a "recognised body?" I may be wrong about that, and if so I apologise to the noble and learned Lord. Even if it is so defined, is he quite sure that a recognised body would not cover the Crown Prosecution Service?

The Lord Chancellor

The definition of "recognised body" is contained in Clause 81, which reads: 'recognised body' means a body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices)". I intend to modify the definition for another reason. However that is the definition which applies for the purposes of the clause and it is intended to cover incorporated practices. I do not believe that that could possibly cover the Crown Prosecution Service. Naturally I shall make certain in view of what has been said.

Lord Campbell of Alloway

My noble and learned friend did not answer the question which I asked. To save time I shall not ask him to answer now. I asked what was meant by: for reasons which apply to him as an individual". I merely ask that he takes the matter on board with a view to excising it from the clause at some future stage.

The Lord Chancellor

I apologise. I dealt with the main point and I should, of course, have answered my noble friend. The circumstances that I have in mind are unruliness or similar behaviour. One can envisage circumstances in which a person who has rights of audience may not be in sufficiently good health at the time or may be in an unruly mood on the day in question. The intention is to preserve the judge's power of control in his own court. The right of audience should not be regarded as in any sense overriding that. That is the purpose of the provision and I am happy to improve the way in which it is described. The Committee will appreciate that the subsection may have to describe a variety of different circumstances.

Lord Donaldson of Lymington

Perhaps I may mention a matter which is relevant to that point, although perhaps neither that nor what I have to say is relevant to the amendment. The noble Lord, Lord Campbell, asked what was meant by for reasons which apply to him as an individual". The most obvious and serious example, albeit not a common one, is where someone seeks to address the court on behalf of another but has himself been made subject to an order under Section 42 of the Supreme Court Act 1981 as a vexatious litigant. Under the 1981 Act it was never contemplated that somebody who was a vexatious litigant so found could be employed to appear in the superior courts on behalf of others. Accordingly that section is restricted to appearing as a litigant in person.

It seems to me that a judge would be fully entitled, when faced with a litigant in person seeking to exercise rights of advocacy before a tribunal, for example, quite apart from a court, to say that under subsection (3) he would not hear the litigant for reasons which applied to him as an individual and giving reasons under subsection (4). I mention the matter because, as I have already told my noble and learned friend the Lord Chancellor, I should hope that there could be an express statutory provision dealing with the matter to avoid the judge having to labour the matter and give those special reasons.

Lord Hutchinson of Lullington

I am very grateful to the noble and learned Lord for his explanation of the interpretation of paragraph (e). Yet again —and it will not be the last time in the Bill —one has been misled as to the possible interpretation of the meaning of the words used. However, having regard to what the noble and learned Lord has said and the clear interpretation he has given to those words, I am content to withdraw the amendment.

I am also grateful to the noble and learned Lord for his observations about Clause 77. It may be that the discussion we have had today will shorten the discussion when we come to Clause 77. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Minister of State, Home Office (Earl Ferrers)

In order that we may take the Statement, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.