§ 3.11 p.m.
§ Lord Windlesham rose to move, That this House takes note of the report of the Royal Commission on Criminal Justice (Cm 2263).
§ The noble Lord said: My Lords, the Royal Commission on Criminal Justice, whose report we are debating today, was set up in 1991 following an announcement by the Home Secretary in the House of Commons on the same day that the Court of Appeal quashed the convictions for murder of the Birmingham Six. It was an immediate response by the Government, and one which was unlikely to have been available at any time during the previous 11 years, no Royal Commission on any subject having been appointed since Mrs. Thatcher, now the noble Baroness, Lady Thatcher, formed her first administration in 1979.
§ Now, two years later, the first thing to say is that the revival of this grandest of all instruments of independent inquiry has been thoroughly justified by the report published in July. The fact that the commission's chairman, the noble Viscount, Lord Runciman of Doxford, is to make his maiden speech in the debate, gives that debate an added significance. The House will also look forward in particular to hearing the Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth, and two other maiden speakers, the noble Baroness, Lady Gould of Potternewton, and the noble and learned Lord, Lord Lloyd of Berwick. As he was a vice chairman of the Parole Board for part of the time when I was chairman, I hope that I may be allowed to extend a special welcome to the noble and learned Lord, Lord Lloyd.
§ It befits a report which has been prepared under the 778 eye of such an eminent sociologist as the noble Viscount, Lord Runciman, that so many of the 352 recommendations are supported by detailed research findings. The commission undertook an extensive research programme resulting in no less than 22 separately published studies. These form an important contribution to knowledge about many aspects of the administration of criminal justice and will be of permanent value.
§ In addition to Professor Michael Zander's Crown Court study with Paul Henderson, there are, for example, highly relevant findings on the contentious issue of the right of silence, which divided the members of the commission. On the basis of the research, no conclusive evidence was found to support the widely held belief that silence is used disproportionately by professional criminals, nor that silence in the police station leads to improved chances of acquittal.
§ The majority of the commission took the view that to allow adverse inferences to be drawn from silence at police stations would make little difference to experienced professional criminals, but would put at risk vulnerable suspects, possibly leading to more convictions of the innocent. On this issue therefore, as on several others, the results of empirical research into what actually happens in the course of police investigations, pre-trial processes and at the trial have to be reconciled not simply with received opinion but also with the fundamental principles of justice which underpin, or should underpin, the criminal law and procedure. Of those fundamental principles, I think we can all agree that the most important is the presumption of innocence until proved guilty beyond reasonable doubt.
§ In any system of criminal justice worth the name, the requirements of justice—touched on, although not made explicit in the preamble to the commission's terms of reference—need to permeate the operation of the system and to guide the efficient use that is made of resources. There has been some criticism of the commission for failing to adopt a more principled approach, expressed in terms of a theoretical structure, and for giving too much weight to the functional considerations of cost and efficiency. The noble Viscount, Lord Runciman, will be well aware of that line of criticism. Perhaps we shall hear some echoes of it in the debate today. But, in what I have to say, I, like the commission in its report, shall be pragmatic, not straying very far out onto the hallowed ground of principle.
§ For principles there are in the report. Make no mistake about it. Two of the most hotly contested principles are the right of silence, to which I briefly referred, and the proposal to curtail the entitlement of the accused to elect for jury trial when charged with an offence triable either way—that is, either summarily in the magistrates' court or on indictment in the Crown Court. But I have little doubt that other speakers will cover very thoroughly those controversial subjects.
§ Instead, I shall confine the remainder of my speech to two topics only: the support of victims and witnesses; and the proposed Criminal Cases Review Authority.
The report contains 11 recommendations at least, depending on how they are counted, which relate to the
interests of victims. Here I declare an interest as president of the organisation Victim Support. In his Blackpool speech the Home Secretary, Mr. Michael Howard, made a feature of saying that he accepted them all. Specific recommendations included:
Priority should be given to establishing witness support schemes in all Crown Court centres"—
that was recommendation 197 in the Royal Commission report—and the recommendation that victims should be kept informed of the progress and outcome of their cases.
§ One might think that encouraging news for Victim Support. But negotiations with the Home Office have been stalled for the necessary funding to carry out the additional work that Victim Support is being asked to take on. The Crown Court witness programme, pioneered by Victim Support over a period of several years, is now established in a number of Crown Court centres and the decision by the Government to fund it is very welcome. But for several months now there has been no money to extend the programme beyond the existing 36 Crown Court centres in which it operates. In 17 more, the plans are well advanced to provide a service of support for victims and other witnesses in court that was so strongly urged by the commission and accepted, your Lordships will remember, by the Home Secretary.
§ Inquiries made of the Home Office have elicited the reply that there was no new money in the Home Secretary's Blackpool speech and that the level of funding will depend on the Chancellor's Autumn Statement. Therefore, if, despite the expectations which have been raised, there is not the necessary funding recommended by the commission and accepted by the Home Secretary, there will be a profound sense of let-down. I use no stronger language than that; but others will.
§ The priority given to the court project should not be at the expense of maintaining and developing the basic work being done throughout the country, mostly by volunteers, in so many local victim support schemes. As reported in the Guardian today, months of talks with the Home Office have failed to produce any results, despite the fact that everyone agrees that it is crucial for support to be available as soon as possible after the crime has occurred.
§ The feelings of victims of crime and the public sympathy for them in their suffering or loss are easy to exploit for various purposes, including the pursuit of political capital. But resounding statements of intent will always backfire and do so quickly unless they are followed by the allocation of resources to honour them.
§ I turn now to the original purpose of the report. It is one that should never be lost sight of in the cornucopia of procedural recommendations and was the impetus of the commission's establishment in the first place; that is, the correction of miscarriages of justice. In recommending that the Home Secretary's power to refer cases to the Court of Appeal should be transferred to a new body, independent of government, the commission made its most predictable proposal.
§ Almost all of those who gave evidence to the Royal 780 Commission argued that changes were needed in the current, and strongly criticised, procedures for considering and investigating allegations of miscarriages of justice where normal appeal rights have been exhausted. The objections were both of principle—that the role assigned to a Minister under existing legislation is incompatible with the constitutional separation of powers between the courts and the executive—and of practicality; that is, that the Home Office has adopted such a restrictive approach that only a handful of cases of alleged miscarriages of justices, where it is claimed that there has been a wrongful conviction (790 were notified to the Home Office in 1992 of which 634 involved a custodial sentence) succeed in passing through a dense bureaucratic mesh. That still leaves the Home Secretary with what many people regard as an impossibly difficult task to carry out.
§ At first sight it would appear that Whitehall is not clinging to the Home Secretary's existing powers—flawed as they so evidently are in application—with its habitual possessiveness. That may be because a former Home Secretary—Douglas Hurd—had frankly told Sir John May's inquiry into the case of the Maguires of his opinion that the responsibility for investigating alleged miscarriages should be separated from the responsibility for law and order and the police. His view of that incompatibility was subsequently endorsed in oral evidence given to the commission by the then Home Secretary and two of his predecessors.
§ So far, so good. But word is getting about that the Government do not intend to include that proposal in the criminal justice legislation which has been forecast for the next Session. Whyever not? The inadequacies of the present procedure and its inordinate length are such that a large backlog has built up of cases calling for investigation. There is no prospect whatever that the understaffed and overworked Home Office division can make any impact on the backlog even if the will was there.
§ It is true that the powers and composition of the new body, and its relationship with the Court of Appeal, will call for careful definition. But not everything needs to be written into a statute. Indeed, some public bodies—the Criminal Injuries Compensation Board and the Broadcasting Standards Council—were set up in advance of any statutory authority at all. Moreover, the Home Office has already had several months to cogitate on how to implement one of the most conspicuous, widely forecast and least controversial of the commission's proposals.
§ If the government draftsman is unable to do the job in time—I ask your Lordships to remember the speed with which the extremely complex amendments to the sentencing provisions of the Criminal Justice Act 1991 were drafted and enacted earlier this Summer—the organisation Justice, whose imprint can already been seen in many places in the statute book, is working on amendments which can be considered when the Bill is before Parliament. My noble friend Lord Alexander of Weedon is chairman of Justice and may have more to say on that later.
§ I conclude by giving two reasons for early action. The setting up of an independent review body to 781 investigate alleged miscarriages of justice has an importance that transcends its function. It is a touchstone of the Government's willingness to legislate, and to do so at the earliest possible moment, on the root cause of one of the blackest episodes in the modern history of the English criminal law and its administration. More than that, if legislation is not introduced soon, there is a risk that the rapidly-changing political climate may ensure that it never happens. I beg to move.
§ Moved, That this House takes note of the report of the Royal Commission on Criminal Justice (Cm 2263).—(Lord Windlesham.)
§ 3.28 p.m.
My Lords, the House is grateful to my noble friend Lord Windlesham for introducing this debate and enabling your Lordships to discuss the report of the Royal Commission on Criminal Justice. I take the opportunity to congratulate the noble Viscount, Lord Runciman, and his commission on their remarkable achievement. The undertaking of a review of the whole of the criminal justice system of England and Wales—Scotland, of course, likes to make its own arrangements—is, by any standard, a magnum opus, and the noble Viscount and his colleagues on the Royal Commission carried out their task with great assiduity and with remarkable dispatch.
At least one of the advantages of the report—by no means the only advantage, nor the main one—is that it has stimulated the noble Viscount to make his maiden speech. That is something to which we will all look forward. The debate will also be enhanced, as my noble friend Lord Windlesham said, by two other maiden speeches, those of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Gould of Potternewton. We look forward to hearing them too.
In considering the report, we have to keep in mind the need to strike the right balance between, on the one hand, the public interest in the detection and punishment of crime, and, on the other hand, the individual interests both of the defendants and of the victims of crime. It is important to remember that the Royal Commission's terms of reference were to examine the effectiveness of the criminal justice system both in convicting the guilty and in acquitting the innocent.
There was widespread concern about the operation of our criminal justice system which came to a head a few years ago when, after 17 years in prison, the Birmingham Six had their convictions quashed. This was after—18 months earlier—the Court of Appeal had granted the appeal of the Guildford Four. And there were other cases, too. And so a "judder" went through the nation's confidence in the criminal justice system. Was it really all right? There were many reasons for this judder of confidence. but it was there, and it had to be addressed. That is why the Royal Commission was set up.
Your Lordships may be aware of the speech which was made by my right honourable friend the Home Secretary to the Conservative Party Conference three weeks ago about measures to promote law and order, a speech to which my noble friend Lord Windlesham referred. A very good one it was too, if I might say so, 782 despite all the hoo-ha which subsequently followed. In that speech my right honourable friend outlined the action which he intends to take in response to around 30 of the Royal Commission's recommendations. I think that that is a pretty good start, and the Government are still carefully considering the other recommendations, which number more than 300. It may be helpful to your Lordships if I try and expand a little upon my right honourable friend's speech, by looking in more detail at some of the issues which are covered by the Royal Commission's report.
One of the issues which the Royal Commission addressed was the question of victims. It made 11 recommendations to the Government about them and the Government accept all of them. In an effort to help criminals to get away from the path of crime and to get back onto the straight and narrow, we have over the years made the error of giving too little consideration to the plight of the victims. Efforts to help victims are essential if the criminal justice system is to maintain the confidence of the public. We intend to address that.
The Royal Commission also addressed the question of corroboration of evidence. The proposal to abolish the requirement, in sexual offence cases., for judges to warn the jury of the danger of convicting on the complainant's evidence alone has been widely welcomed. And we intend to implement that recommendation. The judge will still, of course, be required in all cases to sum up in a way which assists the jury, and which ensures, in particular, that the case for the defence is properly put.
We also intend to put into effect all the recommendations for legislation on corroboration which the Law Commission made in its 1991 report and which have been enthusiastically endorsed by the Royal Commission.
Justice is quite clearly not served when a criminal can avoid conviction by interfering with a jury. At present, if a jury were to be successfully nobbled—and if justice were as a result to be perverted—then the defendant in the case could walk away scot-free. That simply cannot be right. We intend to change the law so that new trials can take place, and that justice can be done—and can be seen to be done.
Public confidence in the operation of the courts is likely to be eroded so long as people, who are themselves awaiting trial, are nevertheless permitted to serve on juries. The Royal Commission made a recommendation that we should stop this. We have accepted this recommendation.
The Royal Commission also made a number of proposals which were concerned with the investigation of crime. One area where the Government have decided to depart from the recommendation of the majority of the Royal Commission and to follow the view of the minority, is to allow inferences to be drawn from a suspect's silence. I know that this is an area in which many people hold different and quite strong views; and with justification. The term "the abolition of the right of silence" is misleading. It is not a matter of imposing any new obligation on the suspect or on a defendant to provide information. He can still remain silent, but in future, the judge and the jury may be told that the 783 defendant decided to stay silent and decided not to answer a question—and the jury will be able to draw such inference from that silence as it may think fit.
The Royal Commission also made a number of recommendations on the subject of DNA. The Government accept the recommendation to allow the police to take—and to keep—samples of DNA. It is important that they should be given the full use of improved scientific knowledge to help them in the fight against crime. The Royal Commission recommended that the police should be allowed to take DNA samples from those who are arrested for "serious arrestable offences" as well as for burglary and assault. The Government intend to go a step further. We shall be proposing that DNA should be treated in precisely the same way as are fingerprints—by giving the police the power to obtain samples for all recordable offences. Of course, it will not be necessary to take a sample in all cases—indeed it would be very costly and cumbersome to do so—but the police will have the option to take a sample where they think it is desirable. And in so doing they will be able, over time, to build up a database of information.
My right honourable friend has also announced his intention to give the police powers to impose conditions on police bail. We agree with the Royal Commission that this will help to prevent unnecessary appearances in court.
The Royal Commission recommended that police cautioning should be put on a statutory footing, so that the actual practice of cautioning should be applied more consistently than it is at present between different police forces. This recommendation remains under consideration. In the meantime, my right honourable friend will be consulting all chief constables about new guidelines on how cautioning should be used.
The Royal Commission also recommended the establishment of a Criminal Cases Review Authority, a point to which my noble friend Lord Windlesham referred, with, I thought, a certain amount of scepticism concerning the part which my department is playing over this. I can tell your Lordships that my right honourable friend has accepted this recommendation in principle. The Royal Commission—quite reasonably—did not offer a detailed scheme as to how this should work. Some further consideration will therefore be necessary before we are in a position to bring forward the necessary legislation. We will, though, do so as soon as we have been able to settle the details of the new system.
The Royal Commission made 352 recommendations—a fair quiver-full—and I realise that I have not begun to touch on large areas upon which it reported. No decisions have been taken on many of those recommendations. They are important, and they deserve careful consideration and diagnosis. Some of your Lordships might say—if your Lordships were unkind, and I am sure that none of your Lordships would slip into that disagreeable category—that the Government have plucked out a few recommendations from a carefully balanced and comprehensive report, just to suit their convenience. That is simply not so. What we have 784 done is to move quickly on those areas where it is practicable to do so. It does not mean that we consider these to be the only important recommendations. Indeed, a number of the recommendations which I have not mentioned deal with very important and very complex matters and will need a lot of very careful consideration.
We are working on the Government's response to these recommendations. And I can assure your Lordships that the views and the opinions which your Lordships express in today's debate—and, indeed, on other occasions too—will be greatly valued; and this will help the Government to formulate their overall response to the Royal Commission's report.
§ 3.37 p.m.
§ Lord McIntosh of Haringey
My Lords, after paying a sincere tribute to the noble Lord, Lord Windlesham, for his wisdom and prescience in putting down this Motion for debate, I should like to say a word to the three maiden speakers. I know that they will all be frightened. We all are when we make our maiden speech. I do not know whether it will encourage them to know that someone in my position can be frightened even now after a number of years in the House when I find myself, as an amateur, speaking with so many people with far greater expertise than I possess myself.
When I am speaking in the company of the noble Viscount, Lord Runciman, and the Lord Chief Justice, among others, I am well aware that I am the shadow; and when we are discussing the Runciman Report, the noble Viscount, Lord Runciman, is the substance. I am reminded, looking at my position, of the story in Bernard Shaw's Adventures of a Black Girl in Search of God. She describes the Bishop of St. Pancras dying and going up to the Pearly Gates. When he is not received with instant rapture he says, "But you must let me in. I am the Bishop of St. Pancras". The angel looks at him sternly and says, "I am St. Pancras".
The starting point for me, speaking at the Dispatch Box, must be that as we have not seen any legislation as a result of this report we do not have a party line on all of the recommendations in the Royal Commission's report. Indeed, I am well aware, from his publications, that my noble friend Lord Williams of Mostyn disagrees with me—or I venture to disagree with him—on a number of issues which may become clear in the course of debate. What we are concerned about is that there should be a fully informed debate on these important issues.
At the same time we are concerned that we should not exaggerate the role of the criminal justice system in the terms of reference of the report. It should not be thought that this is a report about crime or law and order. After all, only a very small minority of criminal offences are detected and come to court. In addition, only a proportion of those cases result in convictions. We should not delude ourselves that, by correcting the errors of the criminal justice system, we have somehow struck a blow for law and order. It is detection and prevention above all which are the determinants of crime.
785 Having said that, the Royal Commission has taken a logical approach to the issues which were placed before it in its terms of reference. It has concentrated the large bulk of its recommendations on getting the criminal justice system right. In recognition of the fact that it will never be possible to do that entirely, it has looked at how to correct mistakes which will arise in the criminal justice system in order to correct miscarriages of justice. All I can do in the very brief time available to me is to "cherry-pick", which I believe is the word that will be used when the Government come to publish their responses to the commission's report. I shall pick out a few of what I consider to be some of the most important issues in terms of public policy.
Perhaps I may refer very briefly to the right of silence, particularly at the police station, and without fear of adverse comment from the prosecution or the judge. Clearly, nobody can stop there being a right of silence. but I am sure that the noble Lord, Lord Windlesham, is right when he says that those who would suffer from a diminution of the right of silence would not be the professional criminals but those who are less sure of themselves and who are more likely to be intimidated and feel that using their right of silence could be used damagingly against them. I believe that the Royal Commission has come to the right conclusion on that matter.
However—and this is probably where I shall find myself in disagreement with my noble friend Lord Williams of Mostyn—I believe that that right conclusion has been undermined by the recommendations which the commission make about the disclosure of the defence. I acknowledge that the line has already been breached with alibi notices. I acknowledge that it is only proposed that defence disclosure should be made known to the jury al a later stage. I acknowledge that that disclosure is confined only to ticking a list of possibilities.
Nevertheless, I question whether the number of ambush defences is enough to justify this fundamental change in the way m which we approach the law. I believe that the requirement that the defence should be able to respond to the actual prosecution and not to some projected future prosecution, should be paramount.
I now turn to the corroboration of confessions. This matter has been dealt with already to some extent by the noble Lord, Lord Windlesham. I believe that Scotland has it right here. The evidence of Scots' law which requires some corroboration—not complete corroboration otherwise confessions would be worthless—shows that it is possible to achieve that without damaging the legal process. However, I believe that Scotland has it wrong when it comes to the issue of jury trial where it is for the Procurator Fiscal to decide whether an each-way offence should go before the sheriff court, the district court or the high court. I feel very dubious about the recommendations of the Royal Commission. The numbers concerned may be considerable but they are not overwhelming. The evidence which has been produced about cases which go to the Crown Court when they are each-way offences, and at the request of the defendant; do not seem to give much support to the view that this is a right which is misused. Yet it is the 786 case that the Crown Court acquits a higher proportion of alleged offenders than the magistrates' court. Therefore there is some justification for the accused to seek that protection.
I shall have to pass over pre-trial reviews although it is an enormously important issue. I wish to deal with something which appears in the report but which does not achieve a great deal of prominence. I refer to the problem of case listing in the Crown Court. The commission seems to give the impression that the listing problem is largely one of the administration of justice. In my view the commission's own research suggests a different conclusion. It reveals that approximately half of prosecuting counsel and nearly a third of defence counsel are not briefed earlier than the day before the trial, and that is despite the fact that 95 per cent. of prosecuting counsel and 93 per cent. of defence counsel believe that they have had enough time to consider the case.
I suggest to your Lordships that those two facts cannot be reconciled. It cannot be the case that a process which has been continuing between solicitors arid their clients and between the Crown Prosecution Service and counsel over a period of weeks or months, can be taken over by a new advocate at the last minute without there being some diminution in the effectiveness of that process. I am expressing a personal view which is that the initiative of the noble and learned Lord the Lord Chancellor in seeking to extend the right of audience to members of the Crown Prosecution Service and to solicitors in the Crown Court is fully justified by the evidence which has been produced by the Royal Commission.
I turn finally to perhaps the most important issue of the report—that is to say, how to deal with miscarriages of justice and the role of the Court of Appeal. Historically it is plain that there has been a series of attempts, starting with the initiation of the Court of Appeal in 1907, to secure wide powers and terms of reference for that court. But successive courts of appeal have themselves sought to restrict those powers. That was true after 1907, after 1965 and the Donovan Report, and it is true even after the provisions of the 1968 Act which speak about the power to relieve lurking doubts. That is a power which has hardly been used in the intervening period.
The noble Lord, Lord Windlesham, rightly said that the numbers referred to the Court of Appeal by the Home Secretary are very small. I believe that the figure is a maximum of 10 out of a total of 800 applications. The important point which has to be made in looking at what the Court of Appeal does is that it should not be concerned only with errors in the trial. It should also be concerned with pre-trial malpractice. In that regard I fully agree with Professor Michael Zander when he said in his dissenting note:The moral foundation of the criminal justice system requires that if the prosecution has employed foul means the defendant must go free even though he is plainly guilty".That leads me to my final point which concerns the Criminal Cases Review Authority. The noble Lord, Lord Windlesham, has rightly said that this is a matter which could and should receive the urgent attention of 787 the Government and that it should come before Parliament in the next Session. He has also rightly said that if for some reason (which we would deplore) it would not be possible to bring legislation forward immediately, there should be a non-statutory body comparable to the early setting up of the Broadcasting Standards Council or the Criminal Injuries Compensation Board. The urgency of this matter reflects the fact that, despite the upsets to earlier convictions which were the basis on which the Royal Commission was originally set up, there are still many cases of injustice outstanding. After the report was published, the Taylor sisters were released. There are still many cases which require urgent attention. The Royal Commission has done an excellent and worthwhile job. It is now the responsibility of Government and Parliament to continue that work.
§ 3.49 p.m.
§ Lord Hooson
My Lords, from these Benches we congratulate the noble Viscount, Lord Runciman of Doxford, and his fellow commissioners on their report. We look forward very much to the maiden speech of the noble Viscount who is to follow me. We look forward also to the two other maiden speeches that we are due to hear today.
On these Benches we take the view that this is not a matter on which to take a party line. The views that I express—and those which my colleagues express—are very much individual views on a very important subject. It does not seem the right kind of subject on which to take a strict party line.
The Royal Commission clearly looked with great care at some of the obvious problems besetting our criminal justice system, and to its conclusions and observations a great deal of weight must be given. The fundamental purpose of any system of criminal justice in a civilised country is to secure the conviction of those who break the law and to deal with them and to safeguard the innocent. The two basic questions are whether in our present system, given the enormous development of internationally organised crime, backed by abundant financial resources, particularly in the drug, terrorist and commercial spheres, we achieve the first objective, and then, given the notorious cases in which our appeal courts have held that persons who have been convicted and who have served long sentences should not have been convicted, whether we reasonably achieve the second objective.
I have long concluded that we need a basic re-assessment of the efficacy of our legal system, to the extent even of taking a good hard look at some of the sacred cows of that system. All lawyers in this country are educated to believe that we have the best and fairest legal system in the world and, indeed, it has served us well. But that very belief, and the refusal to look at other countries, sometimes prevents our sensibly looking at essential weaknesses. I am bound to say that after a lifetime of enjoying hugely the adversarial system—and having believed in it for most of that time—I have had increasing doubts about whether, unaltered, it provides the best means of achieving justice. In the United States, 788 there have been pretty ludicrous developments which we are in danger of replicating here unless we stand back and take a more objective view of the whole purpose of our system and perhaps alter it.
I would not advocate adopting the French system of a thorough-going inquisitorial system. I regret, however, that the Royal Commission did not devote more time and thought than the five paragraphs (11 to 15) of chapter one of the report to introducing an inquisitorial element at an early stage of inquiries into really serious crimes, such as terrorist and drugs offences. The commission was obviously interested in the matter and made a range of inquiries. But its view was, I think, too cautious and perhaps constrained by time. Paragraph 12 states:we do recognise the force of the criticisms which can be directed at a thoroughgoing adversarial system which seems to turn a search for the truth into a contest played between opposing lawyers according to a set of rules which the jury does not necessarily accept or even understand".The commission added that it took a pragmatic view and sought simply to strengthen our current system.
We could start by having a few examining magistrates. Perhaps I should re-word that. If an accused person is brought before an examining magistrate within, say, 48 hours of his arrest and the outline of the case against him is made by police officers under the supervision of the interviewing magistrate, I see no reason why he should not be asked to comment on it. The accused person can still elect to exercise the right to silence because nobody can deprive him of that. Provided that the magistrate ensures that the accused person has had access to legal advice, if the accused person then makes no observation or maintains his silence I think that that is a matter on which a court can comment later. Perhaps we could start with a few such examining magistrates in our main centres of population, limited in the first instance to serious crimes, and see how the system works. If it works well, it might point the way to a consideration of expanding both the number and powers of such magistrates.
The Runciman Commission is of the view that only when the prosecution has been fully disclosed should the defendant be required to offer an answer to the charges made against him at the risk of adverse comment at the trial or of any new defence that is then disclosed. I see no reason why the accused should not be invited to make a reply earlier—we must be realistic—before the prosecution has been fully disclosed but when a proper outline of the prosecution's case is made. The accused should be cautioned that at a subsequent hearing his failure to answer or reply might be commented upon. However, I do not see any justification in a caution for saying that an "adverse" comment or its equivalent would necessarily be made. Together with many others, I know from experience that there is sometimes a very good reason for silence. It is not, as Bentham's famous dictum so simply claimed,Innocence claims the right of speaking, so guilt invokes the privilege of silence".It is not always so. Silence can be invoked because of embarrassment. People find themselves in an embarrassing position—more embarrassing than the charge. Silence can be exercised in order to protect a relative or 789 friend. It can be exercised because an innocent person is scared, shocked or has been advised (wrongly or rightly) to say nothing. A jury can draw its own inferences and, in my experience, often does, but I do not think that a police constable should be allowed to try to influence a reply to a charge in such circumstances by threatening a person who has been arrested with the virtual certainty of an adverse comment.
I should now like to deal with the real problem—the clever, disciplined and highly organised criminals who know how to manipulate the system in order to minimise the chances of conviction. One cannot force them to talk. If the prosecution does not have the evidence to convict them, no amount of comment (adverse or otherwise) by a judge or the prosecution will make up for that deficiency. However, if there is prima facie evidence of guilt, I do not see why a jury should not draw an adverse inference from silence if that right of silence is maintained in the kind of structured interview before an examining magistrate that I have in mind. I therefore come to the conclusion that there is a case for allowing the judge or the prosecution to comment on silence provided that we have first taken the steps to create the right forum for inquiry.
I read with great interest a recent article on confession evidence by a distinguished leader at the Bar, which stated boldly:Confessions are the worst and most unreliable evidence you can find and should be regarded as no evidence at all".In my experience, a confession could be the worst of evidence, but it could also be the best of evidence. I echo the words expressed by the commission in paragraph 67 of chapter four:It is … generally accepted that confessions have hitherto taken too central role in police investigations".It then states the reasons why that should be so. But if we follow the majority view of the commission which states that although a judge should give a strong warning about the dangers of relying on confession evidence alone it is not necessary to have a requirement of any supporting evidence, I fear that police practice will not change. It is essential that there should always be some other evidence supporting acceptance of the confession. For example, if we had an interrogating magistrate, as I have suggested, then the affirmation before him of the truth of the confession could easily be enough.
I may be old-fashioned, but I deplore the majority view which favours abolishing the prohibition on a barrister interviewing witnesses other than his own client, or experts, before the trial. That could lead to many difficulties. support entirely the view of Professor Zander, who was supported by Mrs. Newbold, given in the paragraphs referred to by the noble Lord, Lord McIntosh. When there has been a gross breach of the rules by the prosecution—sometimes the fraudulent presentation of a case—whatever the evidence against the accused may be, it should follow that the conviction is quashed; otherwise the very moral basis of our law tends to disappear. I support the minority view on that point.
§ 4 p.m.
§ Viscount Runciman of Doxford
My Lords, I am extremely grateful to the noble Lord, Lord Windlesham, for giving me the opportunity to address your Lordships for the first time in a debate occasioned by the publication of the report of the commission which it was my privilege to chair. I am also grateful to the noble Earl, Lord Ferrers, for his generous remarks about the assiduity and dispatch with which we addressed our task. But I speak with more than the usual diffidence which attends any maiden speaker because I am conscious not just of the convention which requires me to avoid being controversial on a set of topics about which as, I well know, feelings can run pretty high, but I am conscious that I know a great deal less about the criminal justice system in England and Wales than a great many Members of your Lordships' House, not just those sitting on these Benches.
That said, I have to say that I found a two-year climb up an almost vertical learning curve, which it was for me, an interesting but sometimes also a dizzying experience. It left me at the end with the impression of a criminal justice system which is indeed in urgent need of reform in a number of significant areas, but which, considering the relentlessly increasing demands which are placed upon it, copes remarkably well for quite a lot of the time.
I am sure I shall have other opportunities to address the specific responses made here and elsewhere to specific proposals put forward in the commission's report; but I can say thus far that I have not heard any argument either in favour of the commission's recommendations or against them of which we were riot aware during the course of the deliberations which led up to our making them.
I can also say that I remain unrepentant about our refusal to engage, as some of our critics have wished us to do, in what one might call debate at the level of the higher thought. I have not been surprised that we have been criticised on one side for failing to take advantage of a golden opportunity, as some see it, to recommend the abolition of a discredited adversarial system and the introduction of a system unequivocally committed to the search for the truth. I have been equally unsurprised by those of our critics who claim that we have neglected a golden opportunity to reaffirm the virtues of our present adversarial system to the point indeed, as some would have it, of refusing to accept terms of reference which required us to have regard to the conviction of the guilty as well as to the acquittal of the innocent.
But what has surprised me to some extent is that some of our proposals have been treated as more controversial that I, for one, believe that they are. I agree entirely with the noble Lord, Lord Windlesham, that it is not, or certainly should not be, controversial that if there is reason to suppose that an innocent person is languishing in prison for a crime committed by someone else, that that person's case should be investigated by an independent, pro-active, adequately resourced, well-staffed review authority with the powers necessary to do the job as thoroughly as it needs to be done.
791 It seems to me also that there is nothing controversial about seeking at the same time to minimise the risk that juries will, as inevitably they may sometimes do, convict an innocent defendant, and to do everything possible to minimise the risk that they will fail to convict a defendant whose guilt has been proved beyond reasonable doubt.
I believe that I can, without being controversial, be a little more specific: it seems to me that there is nothing controversial about a recommendation that chief constables should have, and use, powers effectively to discipline members of their forces who have been found involved in malpractice; that there is nothing controversial in a recommendation that suspects should have access, as of right, to competent—I underline the word "competent"—legal advice in police custody; that there is nothing controversial about the recommendation that the facilities of the public sector forensic science laboratories should, as far as practicable, be made available to the defence as well as to the prosecution; I see nothing controversial in the recommendation that witnesses, particularly witnesses who have themselves been victims of serious crime, should be safeguarded fully against the possibility of reprisal or intimidation; I see nothing controversial in the recommendation that relevant and probative evidence should not be withheld from juries on account of outdated and over-restrictive rules of evidence; I see nothing controversial in the recommendation that counsel whose conduct at or prior to trial falls below the acceptable standard, should be penalised effectively; and I see nothing controversial in the recommendation that judges should not just be properly trained but should be sufficiently frequently retrained for the increasingly difficult and demanding job that the system requires them to do.
There is one other general point which I should like to make and which touches upon the anxiety which has been voiced by some speakers, both here and outside, about, to use the phrase that was used earlier this afternoon, "cherry picking". Anyone who is familiar with the criminal justice system will be aware of the close interdependence between its constituent parts. Reforms which are intended to uphold and safeguard the rights of suspects and defendants must not be allowed to undermine the ability of the police and the CPS to do the job that we all want them to do.
Equally, reforms which are directed rightly towards ensuring that guilty defendants do not walk free must not be allowed to compromise the twin principles of the burden and standard of proof in which we all believe. As I hear myself saying that, those propositions sound to me to be so uncontroversial as to be positively banal; but I hope that I and others who have voiced that anxiety are wrong in expressing a fear that some of our recommendations may find favour at the end of the day at the expense of others, when the chances of their success, once implemented, will depend to a large degree upon their being treated as integrated parts of a coherent whole.
In that connection, and lastly, perhaps I may respond, 792 again without risk of being unduly controversial, to some of what has been said about the so-called right of silence.
I was surprised to learn that the Government proposed to disregard a recommendation which was endorsed not only by the Law Society but by the Bar Council and the Criminal Bar Association and which echoed what had been said unanimously on that occasion by our predecessors on the Royal Commission on Criminal Procedure. It is a topic on which although feelings run high perhaps they run higher than would be justified in the light of the evidence to which reference has been made today on the difference that a change of the kind proposed would in fact make to the outcome in contested trials.
It is important that there should be no question of the threat of adverse comment at a trial being such that juries could ever be invited to conclude from the mere fact of a suspect's refusal to answer questions in police custody that that suspect was therefore and for that reason to be presumed to be guilty of the offence with which he or she is charged. My understanding, informal as it is, is that there is no intention that that shall happen under the change which is being considered.
What matters in the discussion that will continue on these often contentious issues is that those to whom our recommendations are addressed do not allow the vehemence with which some points of view will no doubt be put forward by either side to distract them from the one overriding priority. That priority is that everything must be done to help juries to get it right without in any way compromising the essential safeguards which the system must continue to provide for both suspects and defendants.
§ 4.12 p.m.
§ Lord Alexander of Weedon
My Lords, it is a personal privilege and a pleasure to congratulate on behalf of the whole House the noble Viscount, Lord Runciman, on his excellent maiden speech. Few can have made their first contribution in this House by speaking to the report of the Royal Commission of which they were chairman. Not surprisingly, the noble Viscount was authoritative. He was also brilliantly lucid and he trod the tightrope of convincing us that the proposals that he mentioned were neither banal nor controversial. We are fortunate indeed that with the noble Viscount's talents and skills he gave so generously of his time to the difficult and important issues which affect the criminal law.
The Royal Commission was set up three years ago amid widespread loss of confidence in the police and the legal system caused by miscarriages of justice. By the time it reported, the pendulum had swung. There was, and is, an atmosphere of near panic about the failure to prevent crime and to catch, convict and punish criminals. Both those contrasting concerns are valid. Only if we can convict as many as possible of the guilty and acquit the innocent will our system of law carry respect. It has not succeeded always in recent years in meeting either need particularly well. It is vital that there should be change. It is vital that the system should become less cumbersome and more efficient.
793 Many of the recommendations in the report reflect the long-held views of Justice, the all-party group which promotes law reform. Justice, with its wide experience of investigating alleged miscarriages of justice, has long believed that there should be an authority independent of the Home Office to investigate complaints of wrongful convictions. I agree with every word which the noble Lord, Lord Windlesham, said on the issue. With respect to my noble friend the Minister, I share the scepticism of the noble Lord, Lord Windlesham, about the performance of the Home Office in this area. So we welcome the strong Royal Commission endorsement of the proposal and hope that it will be given early effect.
The recommendation can have come as no surprise to the Home Office and it should be implemented in the coming Session. Our experience is that C3, the department of the Home Office responsible for this work, is often tardy in its response, reluctant to be open in communicating fresh information and appears, as the Economist stated earlier this year, to start from the presumption that a conviction is well-founded. I hope, and I am encouraged by the cross-party support, that there will be legislation to set up such an authority this Session.
Miscarriages of justice have mostly been attributable to three causes: first, to false confessions; secondly, to unsatisfactory forensic evidence; and, thirdly, to mistaken identification. So I welcome the proposals to increase safeguards for suspects outside and inside the police station as well as those for improving and monitoring the standards of forensic evidence available to both prosecution and defence. I believe that the proposals to safeguard against mistaken identification are important. I agree with the noble Viscount, Lord Runciman, that it is crucial that the whole package of recommendations in these areas should be implemented swiftly. Taken together, they will significantly diminish the prospects of a wrongful conviction.
All those proposals are common sense and pragmatic. So, too, in my view is the recommendation that it would be wrong to exclude uncorroborated confessions in all cases. I believe that the majority of the Royal Commission was right to say that, provided proper safeguards and screening processes take place, and that the jury is given a proper warning, the jury should generally be the judges of whether the confession has the ring of truth about it. But the safeguards must be clear. No confession should be admissible unless recorded in the presence of a solicitor or unless it clearly appeared from the recording that the suspect had declined the offer of a readily available lawyer.
I have deliberately dealt first with the need to learn the lessons of past miscarriages of justice and to guard against them. For it is only if we do this that we can with any confidence move on to meet the other powerful concern that the guilty escape conviction all too often. It is said that only 2 per cent. of crime results in conviction. Many of the measures needed to reduce and to detect crime lie outside the power of the legal system. The complex Social causes, the role of crime prevention and the skills and resources of the police lie outside the 794 ambit of this debate. But what is certain is that efforts to combat crime need the underpinning of an efficient trial process.
There is currently a deep disquiet about whether our system, with its cumbersome procedural safeguards and adversarial context, is designed to get at the truth. A typical view, expressed by a chief constable in a letter to The Times not long ago, was:… [It] is still more concerned with rules and rituals than with people. It is in fact a game—one which is adversarial, non-conciliatory and theatrical".Anthony Trollope, were he here, would say that little had changed in more than the century since he satirised our system in Orley Farm. Habit dies hard. I believe that we must streamline the trial process so that we can focus on the central issues in dispute.
I agree that the charade of committal proceedings should go and that there should be effective and early pre-trial procedures to clarify and to define the issues ahead of trial. I believe that that is fair to juries, to victims and to witnesses and that it is in no way unfair to the defendants. It is wholly reasonable, once the prosecution case has been fully disclosed, that the defendants, advised by a lawyer, should be required to disclose the nature of their defence. It seems to me common sense. The reasons of the Royal Commission, which are given in Chapter 6, paragraph 59 of the report, warrant brief citation. It states:With one dissentient, we believe that there are powerful reasons for extending the obligations on the defence to provide advance disclosure. If all the parties had in advance an indication of what the defence would be, this would not only encourage earlier and better preparation of cases but might well result in the prosecution being dropped in the light of defence disclosure, an earlier resolution through a plea of guilty, or the fixing of an earlier trial date. The length of the trial could also be more readily estimated, leading to a better use of the time both of the court and of those involved in the trial; and there would be kept to a minimum those cases where the defendant withholds his or her defence until the last possible moment in the hope of confusing the jury or evading investigation of a fabricated defence".I find that reasoning compelling, but in saying that and in believing passionately that we must streamline our creaking system, I do not share the view of those who have suggested recently that the right of silence of those in police custody should in any way be weakened. True it is that some hardened and seasoned people take full advantage of it, but a police station is a frightening place for many and the vulnerable may often be too overawed to do themselves justice in such an environment. I share the concern of the Royal Commission that to erode the right of silence at that early stage could enhance the risk of convicting innocent people. We should weigh very carefully before we go down a route which was thought about and rejected by the Royal Commission.
There are many other difficult issues on which there is no time to touch today. We should rationalise our formal approach to sentence discounts for guilty pleas so as to make them more open. But we must take great care with any formal system of plea bargaining. Careful safeguards will be necessary to avoid an innocent person thinking that it will be in his best interests to plead guilty.
I believe also that we should look closely at many of our technical rules of evidence. Those rules are designed 795 to exclude prejudicial material, but they sometimes shut out evidence which has common sense probative value. We trust juries to decide the basic issues but we do not always trust them sufficiently to weigh evidence which may carry weight with a sensible person.
I am glad that the Royal Commission calls on the Bar to improve its standards and practices in certain important respects. Efficient management and early involvement in cases is a key element. In recent years the Bar has played a notable part in promoting proposals for greater efficiency in criminal and civil justice. The Seabrook Report on the efficient disposal of business in the Crown Court, the Roberts Report on long fraud trials and the joint report with the Law Society on civil justice are notable examples. The standards of many at the Bar are high, but in such a front line profession, considerable further improvement is called for. I welcome the assurance that the Bar Council will address positively the report's recommendations.
Finally, in recent years our prolonged adversarial system has not wholly served us well. It has been unable to prevent some serious miscarriages of justice, yet it provokes dismay that it is so ritualistic and is so little of an apparent search for truth. To modify it so as to preserve what is best and to fashion it to modern needs is no easy task, but of one thing I am sure: it must be attempted; and it must be attempted soon.
§ 4.22 p.m.
§ Lord Taylor of Gosforth
My Lords, I add my congratulations to the noble Viscount, Lord Runciman of Doxford, not only in respect of his chairmanship of the Royal Commission and its recommendations, but also on the superb maiden speech which he made today. As one would expect of a Northumbrian, he has brought a breath of fresh air and some incisiveness into the argument. I am sure that all noble Lords will hope to hear from him not only on this subject but on other subjects too in the future.
The recommendations of the commission are a very notable contribution to our criminal law. Their main characteristic is the careful balance which they seek to maintain between the interests of the suspect and those of the state. They must be seen as a package and many of them are interdependent.
I agree with and support most of the recommendations. Some of them are controversial and no doubt there are those who will consider some of the other recommendations to be controversial. Therefore, it is of the utmost importance that any selections or rejections which are made when drafting legislation do not upset the proper balance and do not produce unforeseen consequences.
I am concerned about the present zeal for moving fast in this field. I know that lawyers are always regarded as being conservative but there can be too great a haste in changing institutions which have evolved gradually over a long period, and which have acquired checks and balances as they have proceeded. I am concerned that the zeal for reform and the enthusiasm for implementing recommendations may lead to over-hasty legislation. We do not wish to have to revise the next Criminal 796 Justice Act within months of its enactment as happened with the 1991 Act. Therefore, I am glad to have the Home Secretary's assurance that the judiciary will be informed fully in good time of the progress of developing proposals.
I ask the indulgence of the House for a moment to comment on the current controversy on sentencing policy which has figured so largely in the press. I much regret that, when differences of view emerge, they are reported in more and more extreme terms. The differences are magnified; points of agreement are ignored; and the debate is represented as a contest. As a judge, I should like to reaffirm what should be a truism; that the duty of the judiciary is to apply the law laid down by Parliament. As regards sentencing, that law is now principally contained in the Criminal Justice Act 1991, as amended. The policy of that Act remains that imprisonment should be imposed only where the seriousness of the offending or the protection of the public requires it. I am quite sure that the judges will apply that policy.
Having said that, I am strongly of the view which has already been expressed by one previous speaker that the most important deterrent to criminals is the likelihood of detection, rather than the nature or length of the sentence. "Will I be caught?" is uppermost in the villain's mind rather than, "Will I get three years or five?". At present public anxiety is that the level of detection is low and, even when detected, many offenders are not prosecuted. The courts can only deal with those who are brought before them. Therefore, I hope that, in their avowed aim to give a high priority to law and order, the Government will lay emphasis on detecting and preventing crime and that all the resources necessary to that emphasis will be made available.
I welcome greatly those recommendations of the commission which have not received a great deal of comment but which are concerned with the beginning of the criminal process; namely, investigation, the way in which the police should go about their business and the way in which they should be monitored, trained and inspected. Those are fundamental to a healthy criminal justice system.
At the opposite end of the process, I welcome the recommendation to set up a criminal cases review authority. However meticulous and fair the judicial process is, no human institution can be infallible. It is necessary to have a review procedure and it should be conducted by an independent body. In that regard it is extremely important—and here I may not agree entirely with the noble Lord, Lord Windlesham—that we should not proceed too quickly. It is important that that new body should be properly constituted and set up. It is important to think carefully about who should make up its members; and not only who should be the chairman, but from what walk of life he should come. We should think carefully about what its powers should be and what the powers of the Court of Appeal should be when a reference is made by it. I hope that due care will be given to that and that, when that body is set up, it will be set up after careful consideration as regards its constitution and function.
797 I applaud the commission's exhortation to judges and lawyers to shorten trials. I have indicated already that in my view judges should become more interventionist, not by being hostile, peppery or crusty, but by politely keeping the trial on the rails and addressing the issues. The Bar Council has already taken steps to raise and monitor standards of advocacy by new guidelines which have been issued. But it would be much easier for judges to intervene effectively if the issues were clearly defined from the start of the trial. I therefore welcome the recommendation that the defence should be required to disclose what the nature of its case is. As I understand it, that can only happen once the prosecution has fully disclosed its case. I cannot for the life of me see what is unfair about requiring the defence at that stage, knowing all that has been put against it, to say in the broadest terms what is the defence.
Professor Zander takes a different view. But, on the other hand, he accepts the propriety of that which has been in place for years: namely, the requirement of an alibi notice where alibi is relied upon. An alibi notice is required not merely to indicate the general nature of the defence but also the particulars of it—for example, the witnesses, the timings, where he was and so on. If one can swallow that, what is so difficult to swallow about simply requiring in any other kind of defence a general statement of either identity, self-defence, consent or whatever it may be?
It seems to me that this reform is long overdue. I welcome the recommendation that it should be implemented. It will also assist in determining the scope of the disclosure to be made by the Crown. Recent decisions of the courts, following the miscarriage of justice cases, have placed an enormous burden on the prosecution to disclose unused material. That often amounts to an immense volume of paper. Presently, the Crown has no knowledge in many cases as to what would he relevant to the actual defence to be raised.
I turn now to two controversial recommendations. The first is the proposed abolition of the right to jury trial for either-way offences. I am opposed to it and was glad to note that it did not figure in the Home Secretary's 27 points. Election for trial by jury is not only a legal right, it is also part of our national culture. The large number of late pleas of guilty when a defendant has elected to be tried in the Crown Court is an inadequate reason for removing such a fundamental right. The Royal Commission's proposal is that the decision, if the Crown and the defendant cannot agree, should be left to the magistrates; in other words, the magistrates are to be left to decide whether they can try the case fairly or whether it ought to be sent for trial to a higher court.
Suggestions as to the criteria that might be applied include whether or not the defendant has a reputation that is worth preserving. In other words, one might find that the respectable person who has no previous convictions will be allowed to have a jury trial because his reputation is thought to be important, whereas someone who has a previous conviction, and therefore not such a reputation to lose, may be told that he can make do with a trial before the justices. It is accepted by the commission that, where reputation is at stake, it has 798 long been considered that jury trial is appropriate. I strongly recommend that that state of affairs should remain.
Although the present form of the right dates only from the mid-19th century, the principle of trial by one's peers dates from Magna Carta. "So what?" it was recently said, "We don't usually govern our affairs by what applied in 1215". But certain fundamentals are timeless. If we are to bin Magna Carta because it is old hat, what hope is there for the Bible?
I trust that your Lordships will allow me a moment's indulgence because I wish to raise the issue of the right of silence. I strongly support the Government's intention to change the law, providing that there are proper safeguards. There is much emotional and ill-informed comment on the issue. What is at stake is not the right to silence. Of course, no one should be forced to answer the police or to testify; but should a suspect have an absolute immunity from comment on his silence? I believe that, in appropriate cases where there is a prima facie case raised—and that is most important, as the noble Viscount, Lord Runciman, emphasised—it should be open to the judge to decide that comment can be made. However, it must be at the judge's discretion.
There is a wide spectrum of cases. At one extreme is the vulnerable borderline and subnormal youth who would be clay in the hands of the police or of prosecuting counsel. A judge would probably not allow any comment to be made about his silence. However, at the other extreme there may he a defendant, with all his wits about him, who instructs his counsel to attack the police. His counsel suggests that they beat him, planted drugs on him and invented their sighting of him at the scene. He then sits tight and does not support those allegations in the witness box. It is surely repugnant to common sense that in such a situation the jury should not be told that they can take into account his failure to support his positive and serious allegations in the witness box.
There are many issues that I should have liked to raise, but I believe that I have taxed your Lordships' patience for long enough. I shall now, belatedly, exercise my right of silence.
§ 4.35 p.m.
§ Baroness Gould of Potternewton
My Lords, in making my maiden speech, I must first thank your Lordships for the warm welcome and for the guidance that I have received both from noble Lords and from the staff of the House since being introduced into your Lordships' House just under two weeks ago. I am grateful to the noble Lord, Lord Windlesham, for having initiated the debate and to the noble Viscount. Lord Runciman of Doxford, whose important and crucial report we are discussing today. I should indicate that I am not a legal practitioner and that I speak with some trepidation among such a learned gathering. After listening to the profound speeches that have already been given, that trepidation has only increased.
I grew up and started my political life in a multi-racial area of Leeds, and soon became aware of the discrimination in society. Over the past 40 years, I 799 have attempted to help remove, or at least alleviate, some of that discrimination. The Royal Commission's report, under the heading "Public Confidence" on page 6 states:Any member of the public who becomes involved in the system of criminal justice … should be treated fairly, reasonably and without discrimination".That is a sentiment which I believe we can all applaud. The report goes on to say that evidence was received on behalf of both minorities and women, who did not feel that they are fairly or reasonably treated, that the system is discriminatory against them. The commission is to be congratulated upon recommending that there should be further research and a system of ethnic monitoring to establish the extent to which members of ethnic communities suffer discrimination within the criminal justice system. However, the commission does not make a similar recommendation in respect of women.
I fully appreciate that there are differences of view on the treatment of women in British justice. There are those who hold the view that women are treated more leniently than men. Conversely, others believe that women are sentenced more harshly than men for their failure to accord with what is considered proper female behaviour. But, whichever viewpoint you hold, the common element is that men and women do receive different treatment in the criminal justice and penal systems. There is a genuinely held belief that the criminal woman is too often forgotten. It is precisely because there are such conflicting and strongly held views that there is the need for the facts to be ascertained and critically examined.
Women represent 17 per cent. of all known offenders and less than 4 per cent. of the prison population. That small number should make it easier to cater for their circumstances. But, in reality, the reverse is true. Women are tacked onto a system primarily geared to men, even though the pattern of offending shows marked gender differences. Sexual offences, burglary, robbery and crimes of violence are in the main male crimes, while a quarter of convicted female prisoners are in gaol for offences of theft, handling, fraud and forgery. That figure would include the woman who was sentenced to 21 days in prison for non-payment of a £48 fine. She could not pay the fine because she had three children, an unemployed husband and was relying on social security as her only means of support. It would also include the young mother whom magistrates sentenced to 28 days' imprisonment for non-payment of a £400 fine for electricity fraud, even though she had made an offer to pay an amount each week. Despite the prison sentence the fine will still stand. What happens to her when she comes out of prison and still cannot pay the fine? Does she go back to prison?
The likelihood of a woman being sent to prison has doubled in the past decade, with three times more women than men receiving a custodial sentence for first offences, although those offences tend to be of a less serious nature. Similarly, women are three times as likely as men to be denied bail at their first court 800 appearance. Yet only one quarter of the women remanded in custody subsequently receive a custodial sentence.
Given the evidence that women defendants rarely commit offences on bail, the number of women remand prisoners could and should be massively reduced. For example, should a 60 year-old woman who had recently been widowed be remanded in custody for six weeks for non-payment of poll tax? With more than half the women in custody having dependent children, 12 per cent. of whom are in care, this practice cannot be defined as real justice either to the woman concerned or to her children.
I am sure that we in your Lordships' House recognise the devastation to the family when the mother is removed from the home. All those with sentencing roles should be reminded of that and encouraged to consider non-custodial sentences such as extending the use of community service or, when appropriate, issuing a police caution. Although the use of community service is increasing, it is granted to twice as many men as women. That service could be extended, the work appropriately chosen and rigorously supervised. Surely it makes economic sense for child care to be provided for, say, two days a week rather than to put the mother in gaol and perhaps the children in care.
My noble friend Lord Ashley of Stoke is to be congratulated on bringing before this House a Private Member's Bill in response to the plight of battered wives who kill violent partners and who face a murder conviction or a life sentence unless they can successfully plead diminished responsibility or provocation. It is, however, encouraging that the report of the Prison Reform Trust inquiry is to recommend that judges should have discretion in imposing sentences for murder.
Crime cannot go unpunished, but real justice must mean that nobody is, or feels, disadvantaged because of sex or colour. Within our criminal justice system much has to change while it is perceived to be discriminatory. We must ensure that all people receive fair and equal treatment under the law. Only then will they have true confidence in our system of criminal justice.
§ 4.43 p.m.
§ Lord Campbell of Alloway
My Lords, it is my privilege on behalf of your Lordships to congratulate the noble Baroness, Lady Gould of Potternewton, on her most interesting and extremely well-informed maiden speech, which centred on the topic of discrimination. That is a very important topic, on which no other noble Lord has yet spoken. This is the first occasion on which I can claim to speak on behalf of all your Lordships in giving these congratulations.
The noble Baroness stood in the shoes of Lord Underhill, a personal and much-loved friend of many of us in this House, as a national organiser for the Labour Party. To boot, she is a Yorkshirewoman. Her speech has left us with a firm impression of her commitment to women's rights. We hope to hear further contributions to our debates not only soon but often, and not only on this but on many other subjects.
801 If the debate is a curtain-raiser to another criminal justice Bill then so be it. The hope is that the ink is not yet dry on the draft of that Bill, which it is said is to be presented to us in the next Session of Parliament. However, I, for one, go along with the caution expressed by the Lord Chief Justice. The noble and learned Lord did riot express himself in the terms I shall use—but then he would not. For heaven's sake let us take a little time and get it right this time rather than rush it. At all events, the assurance given by my noble friend Lord Ferrers from the Front Bench is welcome. It is good to know that on this occasion my right honourable friend the Home Secretary will not shoot from the hip and shatter our contributions as if they were a set of pottery dolls in a fairground shooting gallery, as has happened in the past.
There is no forum other than your Lordships' House, with a mix of political affiliations or none and with a wealth of relevant expertise, which can take note not only of the recommendations of this report but also of the impact which it has already had and may have on the policy of the Government as regards the much-needed reform of criminal justice. That policy has already begun to recognise that we have entered into a new and horrifying dimension of crime—referred to by the noble Viscount, Lord Runciman—not only as regards the quantity of crime but also the quality of that crime. We now see offences which not so very long ago were all but unknown or inconceivable.
The initiative of my right honourable friend the Home Secretary in his Blackpool speech and reflected in his 27-point programme—both of which, due to the courtesy of my noble friend Lord Ferrers, I have had the opportunity to study with great care—is most welcome. Already it is proposed to implement certain recommendations of the Royal Commission. The hope is that other recommendations to which reference will be made may also be implemented in the Bill.
Although this is essentially a political matter—the responsibility lies with the Government and therefore inevitably the decision is political—I agree with the noble Lord, Lord Hooson, that the approach on all sides of the House should be essentially on a non-political basis. As usual in your Lordships' House, I speak merely for myself. We can then surely make common cause on the need for reform of the system so as to achieve a better ordering of what, frankly, is a disordered society. Inevitably, there is scope for disagreement as to how that may best be achieved. Hence the immense value of today's debate. To my mind the criticism, as reported in the press, that the attitude of government is "short sighted and irresponsible" or "unconstitutional" in usurping judicial discretion on sentencing is wholly misconceived if one looks at the documents. How the press have gained that impression, I do not know.
There is one aspect of the proposals of my right honourable friend, referred to by my noble friend Lord Ferrets, with which I am wholly unable to agree. The concept that in a rape case it is either "offensive" or "unjustified"—I use the words in the document—for the judge to warn the jury of the danger of convicting only on the evidence of the complainant is totally wrong. I 802 take the contrary view. It is essential that the judge should be able to, and should, give such a warning. It is immaterial whether the subject of the alleged rape is male or female; or indeed whether the judge is male or female. The manner in which that matter is expressed in my right honourable friend's document is not acceptable. With that exception, however, I support the attitude of my right honourable friend.
Keeping one eye firmly on the clock—there is no time today to debate but only to indicate, and one therefore has to be selective—I come to the sacred cows. Of course there is no such thing as the right of silence. The question is whether the judge can comment on the fact that nothing has been said. However, I draw a distinction between what happens at a police station to which I go with my noble friend Lord Alexander of Weedon, and what happens in court. I believe that the judge should have the right to comment in court if the accused gives no evidence and assuredly when he has made a sustained attack upon witnesses for the prosecution.
I support also the concept of defence disclosure. I can see no objection to it. Such disclosure would save a lot of time. There is nothing unfair about it. By importing that concept one imports to some degree the inquisitorial procedure. I can see no objection to importing it to some degree. I see no objection to the, proposals put forward by the Lord Chief Justice. In a case where an attack has been made upon the witnesses for the Crown, and the defendant does not go into the box to stand up to cross-examination, I can see no objection to the judge being able to comment adversely.
The second sacred cow relates to confessions. I am afraid that I take the view that there have been far too many fabricated confessions which have resulted in convictions, quashed after years of imprisonment. I favour the system in Scotland and adopt the minority view of the commission at pages 62 and 63. I conclude by again expressing the hope that the Government will pay serious attention to all the observations made in the debate.
§ 4.55 p.m.
§ Lord Lloyd of Berwick
My Lords, I feel that I too should apologise for putting my name down to speak this afternoon so soon after taking my seat in your Lordships' House for the first time a fortnight ago. But there were two reasons for that. I hope that your Lordships will at least sympathise with the first. I felt sure that the longer I put off making my maiden speech, the shakier I should feel—if indeed it were possible for a human being to feel shakier than I do at this moment.
The second reason was that by chance I was a member of the court whose task it was to hear the appeals of the Birmingham Six when their case was referred back to us for the second time by the Home Secretary in 1990. As your Lordships will remember, the appeal was not opposed by the Crown Prosecution Service. However, even so, the hearing took several days, and it was on the 14th March 1991 that we announced our conclusion that the appeals must be allowed and the convictions quashed. As the noble Lord, Lord Windlesham, has already observed, it was on 803 that very same day that the Home Secretary announced the setting up of the Royal Commission. As we were walking back from the Old Bailey to the Law Courts, I vividly recall the headlines in the evening papers. I vividly remember my sense of relief—and I might even say of delight—when I read that the chairman of the Royal Commission was to be my noble friend Lord Runciman. I knew then that the investigation would be extremely thorough; that nothing would be spared; no holds would be barred and no sacred cow exempt. When the report was published—and it was surely published more quickly than one had any right to expect, certainly in relation to other Royal Commission reports—I knew that the recommendations would be sane and balanced, and that the report would be extremely well put together. And so it has proved to be. I should not like noble Lords to think that I have read every single word that has fallen from the noble Viscount's pen. Nor do I know whether it is in order for one maiden to pass any comment on another. However, if that be in order, I would say to the noble Viscount, "Well done".
I say nothing about the more controversial recommendations—the so-called right of silence and the further restrictions which are proposed on trial by jury. Those matters have already been well covered and will no doubt be covered again during the remainder of the debate. I wish to mention only two matters which were widely canvassed in the press at the time of the hearing of the Birmingham Six appeal.
The first, which in a sense is almost as fundamental as trial by jury itself, is this. It was said, if your Lordships remember, that our whole system of justice was in some way at fault; that we should abandon our adversarial system with which we were all brought up, for it only served, so it was said, to obscure the search for truth. Instead, we should adopt the inquisitorial system as practised in France and other continental countries.
I can only say—and here I may disagree somewhat with the noble Lord, Lord Hooson—that I, for my part, was heartily glad when that suggestion was rejected, as I read paragraph 14—or at any rate it was not endorsed by the Royal Commission.
The second matter concerns the question of evidence of confessions. As your Lordships know, the present rule is that a confession is only admissible at all when challenged if the prosecution can prove beyond reasonable doubt that it was voluntary. That is to say, that it was not obtained by oppression or the threat of oppression in any shape or form. But it was said by some that that was not a sufficient protection. Confessions, it was said, should only be admissible if they were confirmed or corroborated by some other evidence, however insignificant that evidence might be in the case as a whole. It was observed that this was or seemed to be the law in Scotland.
There are two things to be said about that. First, such an innovation would not have made any difference at all in the Birmingham Six case, where there was of course ample corroboration afforded by the scientific evidence. So such an innovation would not have made any 804 difference to the verdict of the jury in that case. The same is I think true of all the other notorious miscarriages of justice in recent years.
The second thing to be said is that there would be a serious downside to any such proposal. Every year, a number of defendants come before the courts—not perhaps in the most serious cases—in which there is no evidence other than the defendant's own confession. I can see no reason—and again I may differ from the noble Lord, Lord Hooson—why such defendants should not stand trial and let the jury decide whether their confessions be true or false. Where a confession is strictly proved—and that is the vital condition—it remains, in my opinion, the best possible evidence of guilt. To let a defendant off just because there is no other evidence against him save his own confession—perhaps quite trivial evidence—would offend my sense of justice. So I am glad that the commission rejected that proposal too in paragraph 87 of its report. It would surely be a most retrograde step to reintroduce the concept of corroboration, with all the problems that anyone sitting in the courts knows that it causes, just when we are trying to get rid of that concept in other branches of the law.
I am grateful to your Lordships for listening to these few observations on what I believe to be a most valuable and important report.
§ 5.4 p.m.
§ Lord Hutchinson of Lullington
My Lords, it is a tremendous personal pleasure to be able, on behalf of the whole House, to congratulate the noble and learned Lord on his maiden speech. If I may say so, knowing him as I do, it is typical of him that as a former "miler" he has lost not one second in coming to this House and making the speech that he made: a civilised, sensible and relevant speech. Knowing him, I am sure that he will avail himself of the new judicial freedom to fulfil the wish of all of us to hear him on many another occasion. He will bring a waft of bracing and emollient Sussex air to our deliberations in the House.
Turning to the noble Viscount's report, as flattery is in the air, I shall say at once that he has produced a remarkable document and made a remarkable speech. Above all, we have heard his sensible and wise remarks about the right of silence. A massive burden of work bears witness to the awesome task of completing the report in the clearest prose in the space of two years.
Having worked all my professional life in the criminal justice system, I awaited the report with keen anticipation. In the result, I have one general criticism and one major disappointment, but much unstinted praise. By far the most important recommendation is of course the maintenance intact of the right of silence in the police station and at trial. The similar decision of the 1981 commission is endorsed, after the most intense research. Two Royal Commissions in 12 years! What more does the new Home Secretary want? The recommendation is not surprising, as the right reflects the very basis of the English criminal law. It is somewhat of a surprise that I should spell this out to the noble and learned Lord, the Lord Chief Justice. When crime is in the news and the police are under pressure, 805 suffering the grievous loss that they have, a calm appraisal of our fundamental rights is more than ever necessary.
Our accusatorial system rests on two principles: the presumption of innocence and—the other side of the coin—the privilege against self-incrimination. The two are bound together in the right of silence. This last is described in the recent case of Lam Chi Ming by the noble and learned Lord, Lord Griffiths, as deeply rooted in the law andas the most fundamental rule of the English criminal law".In the everyday confrontation of the citizen and the state in the shape of the police, the citizen is made aware of that right through the obligatory caution:You need not say anything unless you wish to do so".The report cites at page 49 a House of Lords case last year in which the noble and learned Lord, Lord Mustill, says of the right of silence that it bestows on the citizen who exercises his right,an immunity from adverse comment".That is the reality of the right of silence, a right not written in inverted commas and a right which I say to the noble Lord, Lord Campbell of Alloway, surprisingly still exists.
The 1981 commission said:To use a suspect's refusal to answer police questions as evidence of guilt would be to compel a reply, to subvert the very principle of the onus of proof".The report at page 55 uses these words which I cannot emphasise too strongly:There are too many cases of improper pressures being brought to bear on suspects in police custody, even [with] the safeguards of PACE… for [us] to regard [such a proposal] with equanimity".Those principles of English common law are now enshrined in Article 6 of the European Convention, yet, if I heard it aright this afternoon, the noble and learned Lord, the Lord Chief Justice, wishes to undermine that right. He wishes, as I heard it, to put the operation of the right of silence into the discretion of the judges.
These principles are the citadel which, throughout my professional life, has always been the ultimate target of the autocrat, the "I know best" brigade and the puffed up politician. The police are of course eager to have the power to force the citizen to speak—to get him to incriminate himself—so that he will say to himself, "If I speak, if I am silent, either way I make the prosecution case". That is why in this country, when in custody, his only weapon is the right to say "No".
The tough reality of the police station and the cell is, as the commission found, that even with PACE and tape-recorders, one's words can be twisted, changed or omitted to provide the missing evidence that the interrogator so urgently requires. That is why those who prosecute and defend, the Law Society and the Criminal Bar Association, those who work the system, prosecutors and defenders alike, support the finding of the Royal Commission. I suggest that those who say so glibly, "The innocent can have no fear; it is the criminal who manipulates the system", and those politicians who wish to destroy with one blast of Blackpool air the very base of the English criminal law, should ponder the further words of the noble and learned Lord, Lord Griffiths, in his reference to the matter of self-incrimination in the case that I have quoted: 806It is better by far to allow a few guilty men to escape, than to compromise the standards of a free society".That is the issue that underlies the right of silence. Once the prosecution is unalterably settled, and the accused has legal assistance, or is in the presence of a judicial officer, then some disclosure by the defence would not., in my view, offend the right of silence.
I now turn to my disappointment. I had hoped that the report would start with a comprehensive analysis of how the system had failed in the appalling series of miscarriages of justice, and why it was that a public lack of confidence had replaced what once was a very general feeling of pride and approval. Far from finding, as one commissioner has said, that the main structure of the system was basically sound, I had hoped that the report would grapple head on with the malpractice of the police, the culture of dishonesty and often corruption that, for instance, successive commissioners of the Metropolitan Police, from Robert Mark onwards, have tried so hard, but failed, to stamp out.
I had hoped that the report would address the abysmal failure of trial judges to recognise the dangers and weaknesses of the cases presented to the different juries, and their repeated failure to set right the injustices on appeal. I had hoped that it would examine the failure of the lawyers in their overriding duty to the court to see that such miscarriages of justice do not come about. Are there not structural changes to he brought about in all these areas? I fear that the wood at the guts of this inquiry will be lost in the 350 trees of recommendation. It will be so easy for any government to say, "Look, we've carried out 300 recommendations, yet failed to get to the very basis of the problem".
The report failed, I fear, to outlaw uncorroborated confession; untape-recorded admissions; confessions made incommunicado in custody; evidence obtained by police malpractice; and convictions upheld where police malpractice is established. It has removed the right to trial by jury, as we have heard, in 35,000 cases for financial reasons, and it seeks further to undermine jury trial by the disastrous idea of letting researchers loose into the jury room. Those points are the negative side of this very brilliant report.
The commission has achieved a very great deal. It has worked enormously hard. But I fear that miscarriages of justice may still too easily occur.
§ 5.15 p.m.
§ Lord Renfrew of Kaimsthorn
My Lords, this is one of those very distinguished Royal Commission reports which may be expected to make a very real contribution to the improvement of our system, in this case our legal system. We are fortunate that the noble Viscount, Lord Runciman, was the chairman of the commission, and we have heard the formidable clarity this afternoon which he has evidently brought also to the work of the commission.
We were also fortunate enough to hear the informative and moving maiden speech from the noble Baroness, Lady Gould of Potternewton. The noble and learned Lord, Lord Lloyd of Berwick, brought great and 807 very relevant experience to the debate. We should be very grateful to my noble friend Lord Windlesham for introducing a debate of such very high quality.
The central theme of the debate is no doubt the rights of the accused, and of the victim—the balance between the need to convict the guilty and to acquit the innocent. But perhaps I may address one particular theme, which was touched on by the noble Viscount, Lord Runciman, in his remarks; namely, the position and standing of the police. Paragraphs 96 to 103 of the report deal with the issue of police discipline.
The bedrock of our system of order in this country, and a key part of our system of justice, depends upon the very high standing in which the police are properly so widely held. It is a sadness that the occasion for the report of the Royal Commission was a very sad series of miscarriages of justice, some of which did not reflect well upon the operation of some members of the police force. What has been so damaging, in my view, to the good standing in the public eye of the police force has not simply been these miscarriages of justice—there will be bad apples in the barrel and there will be miscarriages of justice—but the failure in the majority of cases to discipline those police misdemeanours which on some occasions have clearly occurred. The report states:We doubt whether the existing arrangements for police discipline do now command general public confidence".My central point this evening is that it is unfair to the vast majority of the police that this situation should pertain. It is unfair to the vast majority of our police who do their work so effectively and well that those few bad apples in the barrel are allowed to remain in the barrel, as it were, without effective discipline.
There is a widespread view in this country, which I have heard quoted at times, that it is in some way disloyal to question the behaviour of individual members of the police force, even when that behaviour may seem to be suspect. There is a suggestion in some quarters that it is not always appropriate to question police evidence. I do not believe that that view does justice to the police. However, it is a serious error from which the judiciary itself has not been entirely immune. The most famous case is of course that of the Birmingham Six, which activated the report that we are now discussing. It will be recalled by some Members of this House that six years after the conviction of the Birmingham Six, there was a civil action in which the Master of the Rolls, the noble and learned Lord, Lord Denning, terminated the proceedings with these words:If the six men win, it will mean the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary, and were improperly admitted in evidence, and that the confessions were erroneous".He argued that this was such an:appalling vista … that the action must be permitted to go no further".So those six men had to wait another 11 years in prison for their case to be accepted and for their convictions to be quashed, as we heard only a few moments ago.
Something went seriously wrong. When things go so seriously wrong and the course of justice has been perverted—I speak now in general terms as I do not 808 wish to deal particularly with the case of the Birmingham Six which has been brought to a conclusion (I refer now to the police officers) which may or may not be entirely satisfactory; I am sure that it is not appropriate to try to deal with specific cases in this House—we and the police are entitled to expect some action. We are entitled to expect that, when misdemeanours have occurred, the matter where appropriate, will be brought to trial or (and perhaps in any case) subjected to coherent disciplinary procedures. In particular it should not follow the course of taking early retirement on medical grounds before disciplinary proceedings are concluded. That was a point made in the Royal Commission's report.
I recall that on that last point there has been a statement from the Home Office to the effect that the procedure of taking early retirement on medical grounds before disciplinary proceedings have been concluded has now been terminated. I should be grateful if my noble and learned friend, who will be replying to the debate for the Government, will confirm that point for me. I found no mention of it in the Home Office consultative paper of March 1993.
It is clearly an irony that the six persons were wrongly imprisoned for 17 years. We must therefore infer that the perpetrators of the outrage for which those six people were convicted have presumably gone free and remained free. If I were a member of the police force, I should deeply resent that just a handful of bad apples (if I may continue to use that image), a few dishonest policemen, were bringing the police force into disrepute. I should sense a lack of leadership in the Home Office and among senior police authorities in that this situation had been allowed to persist for so long, and I should feel that the good name of our police demanded a better response. Therefore I welcome warmly the recommendations in the Royal Commission's report which I hope will lead to discipline being treated as a separate issue altogether from criminal prosecution and the doubtful dodge, safeguard or, shall I say, refuge of double jeopardy being scrapped. If I were a policeman in such a position, I should advise both the Home Office and the Government that it is poor service to the high standing and good name of the police to allow the present situation to continue.
I hope that when my noble and learned friend on the Front Bench comes to reply, he will confirm that retirement on medical grounds before disciplinary proceedings are concluded is no longer permitted. Perhaps more significantly he will be able to confirm that the Government will implement the recommendations of the Royal Commission in relation to police discipline.
§ 5.24 p.m.
§ Lord Dainton
My Lords, many noble Lords who have already spoken and some who have yet to speak in the debate have extensive knowledge of the law and our courts of justice. I have no such knowledge. I enter the debate for another reason. Your Lordships may recall that the Select Committee on Science and Technology established a sub-committee to inquire into the forensic 809 science service of the United Kingdom. It did so because of the crucial role that forensic science can and has played in criminal cases: on the one hand, in prosecuting the guilty and preventing charges being brought or leading to the acquittal of innocent people; and, on the other hand, when that evidence is flawed and innocent people are deprived of their liberty, of which the notorious miscarriages of justice in recent years, to which reference has frequently been made this afternoon, are a constant reminder.
The report of the sub-committee, published in March, is favourably referred to at paragraph 5 in Chapter 9 of the Royal Commission's report. I should like to thank the noble Viscount, Lord Runciman, for that reference. I also want to congratulate him on his maiden speech, which was conducted, as I believe must rarely be the case, it seemed to me without a note. As chairman of that sub-committee, I should like to comment on that chapter and on some other related points.
Your Lordships may in fact be aware that in England and Wales (to which the report refers—not to Scotland) general forensic science services are provided by the laboratories of the Forensic Science Service, which is now a new agency of the Home Office, the Metropolitan Police Forensic Science Laboratory and an expanding but quite unregulated private sector, while specialist services are offered by the Defence Research Agency and the Laboratory of the Government Chemist. If justice is to be served, the quality of those services must be the highest attainable and be presented to the court as completely and unambiguously as possible.
The extent to which those aims can be achieved depends on the technical competence, the personal and professional integrity of the individual responsible forensic scientist who is called in as an expert witness, the efficiency, tone and management of the laboratory in which that scientist works, the skill of those collecting samples to be examined (the scene of crime officers) and finally the efficacy of the court's procedures. It is important to recognise that the forensic scientist is not a servant of the court nor is he or she paid by it. His evidence is adduced by counsel who use it in the adversarial context of the court in a dialectic which some, including myself, may regard as akin to scientific inquiry.
To the Select Committee it seemed self-evident that individual forensic scientists, whatever their other qualifications, should be tested and registered as fit to practice. All those active forensic scientists, whether public or private, as well as prosecutors and the police who submitted evidence to the committee strongly supported that view. That conclusion should not, and does not, prevent the judge from hearing whom he pleases. We believe that the Government should be responsible for the administration of a registration process of individual forensic scientists and should be assisted by what we call the Police Advisory Board (to which I shall return later), in which the relevant public and private constituencies should be represented, including the relevant professional bodies.
The Royal Commission was reluctant to go so far. But it considers that professional bodies should keep a register of members suitably qualified to act as expert 810 witnesses in particular specialties. After a great deal of reflection on those two slightly different approaches, I still prefer the Select Committee's solution.
Turning now to the quality of the laboratories in which the forensic scientists work rather than that of the individuals, the Select Committee and the Royal Commission are in broad agreement on the necessity for external scrutiny of the quality assurance procedures operated by the laboratories and the results of those scrutinies as well as on the need for some overall supervisory body for forensic science. It would be called a council by the Royal Commission and the public advisory board by the Select Committee.
In their evidence to the Select Committee, the laboratories themselves told us that they would welcome such a board. It is important to recognise the great progress that the public laboratories have already made with their own quality assurance procedures in recent years. That is something which appears to have gone largely unnoticed.
First, one of the striking features of British forensic science is that it is highly cost-effective. It has been shown that it doubles the chance of the clear-up—I use that term neutrally—of police investigations at costs which are less than those for CID or fingerprint input. It seems inevitable that demand for it will grow and in that one can foresee dangers. The numbers of private practitioners may increase, and if they are unregulated it will be bad for the whole system. If the requisite standards are to be maintained, that sector must be subject to the same rigorous registration arid accreditation processes as we believe should exist in the public sector.
Secondly, direct charging for services, whether in an internal market or the external private market, causes the purchasers of forensic science who have limited budgets to be extremely cost-conscious. Misplaced efforts to economise can then have deleterious effects which at their worst could result in a future miscarriage of justice. Less dramatic, probably more frequent and certainly important, is a diminished access to forensic science. When costs are in part met by legal aid, which is both limited and often late in payment, that is particularly likely. That is why the Royal Commission's recommendation 284 that legal aid claims made in advance of scientific work being commissioned,should be processed and paid promptly and at least interim payments made",is so important and to be welcomed. There is also a danger that when charges are reduced to capture custom, too little work will be devoted to that research on which future effectiveness depends. That too is acknowledged by the Royal Commission and the Select Committee. Both seek to encourage research; they recognise that pace-setters in research should exist and that universities have a valuable part to play as host to at least one centre of excellence. In the Select Committee's view, only a small amount of money is needed to secure those ends; it is a small premium to pay for an insurance against declining standards and the serious consequences that that may entail.
The list of desiderata on which the Royal Commission and the Select Committee are broadly 811 agreed is long and I have time only to mention a few. What we both consider is essential if those reforms are to be achieved is that some body should be set up under the auspices of the Home Office—call it a policy advisory board or a council—which would be charged with keeping an eye on the adequacy, the organisational relationships and the quality of the various forensic science services in England and Wales and with the power to recommend measures for improvement. I have no doubt that there will be plenty of work for it to do. Is it too much to hope that after consideration of both our reports the Government will come forward with some arrangement which will accommodate our joint concerns and views?
If justice is to be served the full import of any forensic evidence must be fully comprehended by the court. Much therefore depends on the manner of that presentation to secure the maximum comprehension by the court and especially by jurors, few—if any—of whom are likely to have anything but the most partial understanding of scientific method, its powers and its limitations. In proposing procedures to reduce misunderstanding, the Royal Commission and the Select Committee are at one. Both insist that when scientific evidence is being led, the prosecution counsel must conduct a pre-trial conference with his expert witness, and both recommend a pre-trial review before a judge when evidence is disputed, the ultimate aim being to provide the court with a clear account of what evidence is agreed and what is disputed, so as to minimise scientific argument in front of the jury. Both the Commission and your Lordships' Select Committee wish to give scope to expert witnesses to use visual aids, to clarify or add to their evidence if they think that to be necessary and the judge concurs. Like the committee, the Royal Commission sees the need for a review of the hearsay rule, which restricts the admissibility of scientific evidence performed by a competent assistant of the witness and also for some training for criminal lawyers in the basis of forensic science.
In a majority of those matters studied by both the Royal Commission and the Select Committee there is a remarkable coincidence of views which I hope will powerfully strengthen the case for the acceptance by government of the appropriate recommendations. I hope your Lordships will agree. After all, those of your Lordships who are learned in the law will instantly recognise that "coincidence" is "corroboration" under another name, while scientifically literate noble Lords will adopt the mathematical approach that says that the probability that both the Royal Commission and the Select Committee are wrong is mathematically the product of the chances of error of each and therefore, dare I suggest, quite minute.
§ 5.36 p.m.
§ Baroness Seccombe
My Lords, I add my thanks to my noble friend Lord Windlesham for giving us this opportunity to debate the important report of the Royal Commission on Criminal Justice. As other noble Lords have said, over 300 issues are dealt with by the noble Viscount, Lord Runciman, and his members of the 812 commission. It would be tempting to say a few words about each of them. However, this evening I shall confine myself to just three.
The rise of crime is a concern in practically every country worldwide. It is the responsibility of government to lead a nationwide partnership to cut crime. The public expect effective action and look to Ministers to give them confidence by the use of significant measures. I wish to refer to the delays which occur throughout the legal system. I accept wholeheartedly the old adage that justice delayed is justice denied. I passionately believe that the situation where someone has a serious charge hanging over them month after month should be ended as soon as possible. The strain is on families as well as defendants, and for someone who is eventually acquitted the trauma must be horrendous.
I realise that everyone working in the system is trying their utmost to cut out delay, but the system seems to be longwinded and in need of bold action. For instance, too many cases, for various reasons, end up in the Crown Court. One of those reasons is the right of the defendant in "either-way" cases to choose the venue of his trial. In this country we have over 27,000 magistrates, all of whom are well trained, having been appointed because they are believed to have such necessary qualities as impartiality, fairness and common sense. It always seems strange to me, therefore, when a Bench has come to a view that a case is suitable to be heard in a magistrates court, that the clerk then turns to the defendant and says, "You have heard the magistrates say that they are willing to hear your case. Now it is up to you to say where you would like your case to be heard—here or in the Crown Court".
All too often the choice is the Crown Court. The reason may be that the defendant just wishes to put off the day of the trial; perhaps he thinks that he has a better chance of acquittal in the Crown Court. However, if one has a judicial system in which one believes and for which one has respect, and which deals with 93 per cent. of all criminal cases, why should not the court make that vital decision? Obviously clear guidelines would be given and criteria developed to assist in coming to that decision. I believe that more cases would then be heard in the magistrates' courts, freeing up the Crown Courts to concentrate on the more serious cases. I am concerned about those who opt for the Crown Court and then change their plea at the court door. In addition to the delay caused to the whole system, the cost of such proceedings to the taxpayer is formidable.
The technical development of DNA fingerprinting is an important tool in the fight against crime, so I am delighted that my right honourable friend the Home Secretary has accepted the recommendation of the commission and indeed intends to extend the use of DNA to anyone who has been arrested in connection with a recordable offence. I would go further, my Lords. In recent days the question of ID cards has been raised again. I restate my belief that we should have such cards for everyone and DNA records. I am sure that the public would see it as a sensible and positive initiative. After 813 all, the development of cards today is such that nearly all of us have at least one and have become accustomed to their use.
The right of silence is an issue which always causes great debate. I take a very simplistic view. I believe that no one has anything to fear from being asked reasonable questions about where they were and what they were doing. Safeguards are now in place, such as tape-recorded interviews, which give adequate protection. Evidence shows that in one-fifth of all Crown Court cases the defendant makes some use of the right to silence. It is certainly used by hardened criminals who I believe abuse the privilege.
The most important role of the judicial system is to ensure that the guilty are convicted; but equally importantly, that the innocent are acquitted. I welcome the Home Secretary' s prompt action in accepting some of the most important recommendations and I very much hope that in the coming Session we shall have the necessary legislation brought before this House.
§ 5.41 p.m.
§ The Earl of Longford
My Lords, it is a pleasure to speak after the noble Baroness. I gather that she was once chairman of the Conservative conference. I am sure that her views as expressed today would have been very acceptable there. I hope that she does not find the atmosphere here too gentle, civilised and sophisticated for her taste. As time goes on, she will get used to it.
I am very happy to take part in the debate initiated in such stylish fashion by the noble Lord, Lord Windlesham. Years ago the daughter of Professor Gilbert Murray wrote a book called The Good Pagan's Failure. I would say that the noble Lord, Lord Windlesham, is an example of the good Conservative success, which is a rather paradoxical reflection. If I had my time again I would not exactly be a Conservative, as I was once; but if I were a Conservative, I would be the same kind of Conservative, if I may put it that way, as the noble Lord.
We have had some distinguished maiden speeches, if it is not impertinent of me to congratulate the noble Viscount, Lord Runciman, and the noble and learned Lord, Lord Lloyd of Berwick. I must mention my noble friend Lady Gould. When I was much younger people were terrified and horrified at the thought of Transport House. However, my noble friend comes before us as the acceptable and attractive face of Transport House. What more can one say?
I intend to speak briefly and well within my 11 minutes. I shall not deliver another speech on penal reform because penal reform, curiously enough, is not the subject before the House today. Penal reform is concerned with the sentencing and treatment of convicted persons. We are concerned with prosecuting the guilty and at the same time trying to avoid convicting the innocent. There are many noble Lords present who have much more right to speak on that subject than me. I shall confine myself to a few thoughts about miscarriages of justice.
I have had a good deal of first-hand contact with some of the people involved, most of all with someone called Mrs. Maguire, a woman who was shamefully 814 maltreated and spent years in prison as a result of the grossest of stupidity—to use no stronger word—on the part of the whole system. Various members of the family were treated very badly. Her son was 13 when he was arrested. He spent three years in custody. Noble Lords may say that no legal provision could cope with that, but that was, in my opinion, the most horrifying fact of the whole story. At any rate, here was this lady, Annie Maguire. She was convicted of running a bomb factory. She would not know how to make a bomb any more than most of us would. But that is what happened. She spent many years in prison. I therefore want to ask whether, under the proposals of the Royal Commission which we are discussing today—I am not too sure where the Government come in here—that could happen again. I want to focus on that quite simple issue in that single case.
The fact that Sir John May was a member of the Royal Commission is a strong argument for the view that that situation is well catered for. Sir John May did more than anyone else through his inquiries finally to vindicate the Maguires, so if Sir John May says that the proposals of the Royal Commission are adequate, many people will feel that that should be good enough for most of us. Nevertheless, I am bound to give the House the opinion of Mr. Logan, the solicitor who worked all those years for the Maguire family and others involved in these miscarriages and who is still fighting the battle to secure adequate compensation. Mr. Logan, on reflection, considers that it is most likely that even under the Royal Commission's proposals the same thing could happen, up to the point where the appeal is rejected.
I must state that opinion. No one knows the subject as well as Mr. Logan, after all these years. He recognises that if an independent authority is set up—I am still not sure (perhaps we shall be told more tonight) whether the Government are to set up this independent authority; I do not think that we were told that—justice will eventually be done rather sooner than it was done in that. case. Nevertheless, unless something more drastic than the proposals of the Royal Commission is adopted, unfortunate people like the Maguires and others will spend years in prison. A great injustice would occur. That is an opinion, I agree. Noble Lords can take it or leave it as they like. But it must be put on the record.
I want to make it plain, if only for Mr. Logan's professional reputation, that he is not against the whole report of the Royal Commission. He favours it. In particular, he favours the setting up of an independent authority. He favours the Royal Commission, but he thinks that there are weaknesses when it comes to trying to prevent miscarriages of justice. Mr. Logan singled out 13 issues involved in the miscarriages. Four out of the 13 are covered in the report. The other nine are not covered. In particular, the corroboration of confessions is not covered adequately by the Royal Commission.
I place before the House that consideration. We must realise that we should not go away and think, "There will not be any more miscarriages of justice". We must not suppose that that will happen. People being what they are, with the possibility of dishonesty and so on, everything cannot be covered. However, it is within our power to do much more than we are doing, or the Royal 815 Commission is doing, to avert miscarriages of justice. I hope that the Government will at least take note of the opinion of that gentleman who I personally suggest has a unique right to speak on the matter.
§ 5.49 p.m.
§ Lord Elton
My Lords, with so many maidens present, I must spare one of my precious 11 minutes to say how welcome their speeches all were. To one of them, the noble Viscount, Lord Runciman, I would say that we are often accustomed to having to wait too long for the end of a speech in this House; it really is a pleasure to find that one has had to wait a great deal too long—four years too long—to hear the beginning. I hope that we hear many more quite soon.
I propose to look at only two aspects of the matter before your Lordships' House—one specific and the other general. The specific one relates to the proposal in paragraph 19 of chapter 6, which was referred to by my noble friend Lady Seccombe, to limit the option of going for trial by jury in cases of the theft of items of limited value—below £200 is the optimum level.
We have rehearsed that question in this House in connection with an earlier Criminal Justice Bill. Arguments were advanced which I believe were then summarised very ably, as one would expect, by the noble and learned Lord, Lord Taylor of Gosforth. I hope that your Lordships will consider for one moment what those arguments were. If I recall them correctly, the first was that such an option is a legal right. I remind your Lordships that the origin and control of the legal right is parliamentary. That is the function of this House and another place with the Crown. So nothing is sacred from that point of view.
The second argument is that it is part of our culture. I believe it is in a state of decline with increasing violence. It is materialistic, xenophobic and a largely incompetent culture which needs to be changed. The fact that something is part of it does not argue that it should not be changed as well. The third argument is that the accusation of theft is peculiarly damaging to the accused's reputation. I am not sure whether I believe that it is more damaging to an accused than assault on a policeman, driving a motor car while drunk or obstructing a policeman in the pursuance of his duties. As I understand it, all those offences are triable only by the magistrates, and are all imprisonable. In any case, surely reputation is relevant only on first conviction. I cannot see that there is any danger to the reputation of a convicted shoplifter or thief when he or she comes for trial for the second time. These convictions are appealable in any case. If magistrates were not to be allowed to hear cases of those accused of offences which were damaging to the reputation if they were sustained, the magistrates would have nothing left to do.
The next argument appears to be that magistrates would not be fit people to decide whether the question of reputation was of sufficient weight to justify referral to the Crown Court. In view of the volume of business with which they already deal with the confidence of the nation and the judiciary, that seems to be a strange consideration. It is particularly strange to suggest that 816 magistrates might think that the reputation of a doctor was more valuable than that of a bricklayer. The comparison invited in the recommendation was a quite different one which magistrates would be capable of making.
All this would be to me a fairly academic discussion had I not been in charge of Her Majesty's prison service for three years. During that time I was exercised, as my successors are now, about the conditions of overcrowding in our prisons, particularly in the remand wings. It came to my notice recently that of the business in the Crown Court in Greater London, I believe 10 per cent. of the business and 8 per cent. of the time of the court was taken up with cases of this kind before juries. In the remand wings I saw queues of people waiting to get to the Crown Court which was occupied hearing such cases or, as my noble friend Lady Seccombe said at an earlier stage, not hearing them because the plea had been changed at the doors to the courtroom.
To those of your Lordships who believe that there is no price to pay for resisting this recommendation, I recommend a visit to Reading gaol or any other local prison in the hotter months of the year. Noble Lords will find three young men stifling for 23 hours a day very often, together for a part of that time, with the results of slopping out. That is not something to which noble Lords would condemn their children when they were untried and unconvicted. Technically innocent people are kept unnecessarily long in those conditions as a result of this provision.
The question is even more important than that, because a reduction of that population, which this reform would bring about, would reduce the number of people in the remand wings. Because the prisoners there are unconvicted and untried, they have many more privileges than those serving long sentences. They absorb a hugely disproportionate amount of staff time as a result, and consequently the effects on the long-sentence prisoners of being locked up and not getting education or work, is disproportionate. As noble Lords would have gathered, I feel strongly about that. I ask the Government to consider this recommendation very seriously. I for one will join others in the Lobby if the legislation necessary to implement it goes to a Division.
The other matter to which I draw attention is the context in which this report is written. I do not mean the immediate context of the particular trial and the result which the noble and learned Lord, Lord Lloyd, in whichever unpronounceable location he chooses to be, referred to in his very able maiden speech. I refer to the history and society in which we live to which I have already referred. It is appropriate to talk about the context because anything looks different according to its context. A bull looks very different if it is seen in a farmyard pen; or if it is seen in a field in which one has chosen to have a picnic; or indeed if it is seen in a china shop.
This document comes to us at a moment when it seems to me quite clear that respect for all our institutions, including the judiciary, this place, and it may be parliamentary processes and democracy themselves, are being called into question and receiving 817 less than their former respect. It is a time when material gain is being seen by increasingly large proportions of our population as the only mark of success and the only means of acquiring fulfilment in life. That is a disastrously mistaken view of the purpose of creation and one which leads to endless unhappiness.
We are a violent and selfish society. As a result, the pressures which as a society we put on the judicial system are, as the noble Viscount said in his speech, relentlessly increasing. If that is the case, why do we not try to reduce them? It is important to begin improving the system which deals with them; but the product is too much. There is something wrong in society. Our children are getting the wrong end of the stick. Why is that? What can we do about it? If this were a debate on education, I would go back through the secondary and primary schools and finish up with vigour and fervour in among the teacher training colleges because I believe that we have to establish standards of morality, discipline and ethics which have been lacking for a generation at a disastrous cost to this nation.
But that is a debate on another subject.
I look later in the stream at the young people in whom I have taken a close interest for many years, who find themselves emerging from school onto the streets with nothing to do. Every child who comes into this world and every young man and girl who goes out from school has a spark of initiative, enthusiasm and energy to devote to life which can go in one of two ways. Those attributes have to be used because they cannot be bottled up, otherwise there will be an explosion. Either one builds something or smashes something. Crudely put, that is the choice before our children. We have to give them the chance to build. If they cannot do it through employment or further education, then we must find other means of building.
Those means are to hand. They are provided by countless voluntary workers throughout the country providing outward bound courses, jazz bands, football teams, climbing frames, adventure playgrounds, and so forth. I have 30 seconds left in which to speak. I know that my noble friend Lord Ferrers has been waiting for me to put in a plug for the Home Office. Perhaps I may say how much I support its initiative in the treatment of offenders in the community, and more particularly its diktat that 5 per cent. of probation service resources shall in future (but I regret not until 1995–96) be devoted to the voluntary sector in this field. Although there is not the time now to read them to your Lordships, I have figures which show that, even at the optimum, that will yield less than £10 million and less than is needed. I use my last 30 seconds—stolen from your Lordships' time—to ask my noble friend to put his hefty and notable shoulder behind the wheel to give more impetus to that portion of Home Office policy.
§ 6 p.m.
§ Lord Wilberforce
My Lords, after most warmly congratulating the Royal Commission on its remarkable report and after thanking the noble Lord, Lord Windlesham, for initiating this debate, which, again, I warmly do, I move straightaway to the points which I desire to put to your Lordships. I refer to the section of 818 the report which deals with forensic scientific evidence. It is an important part of the report, taking up the whole of chapter 9, with 17 pages and some 30 recommendations. Although it is less eye-catching than some of the other subjects such as the right to silence and the necessity for an independent body to look at miscarriages of justice and is, I am sure, of less human interest than the considerations that have just been expressed so eloquently by the noble Lord, Lord Elton, it is of importance of itself in three ways.
First, a very large number of cases are affected by forensic scientific evidence. On page 156 the report estimates that there are 10,000 cases per year in the Crown Court involving some scientific evidence—no doubt many are routine and trivial and deal with the existence of cannabis or something like that. The House of Lords Select Committee Report, which I shall call the "Dainton Report", shows that in 1991 the forensic science laboratories handled over 90,000 cases, with 400,000 exhibits. So, there are a lot of cases and a lot of money is involved.
Secondly, there is the increasing sophistication of scientific evidence. Tests for nitroglycerine and the presence of blood are getting more and more difficult to understand and to check, and we now have DNA profiling, about which I shall say more later.
Thirdly, there is the possibility of a miscarriage of justice in such cases which, when it does occur, may he spectacular and hard to put right. I shall not list all the cases, but shall mention some which your Lordships will recognise. I refer to the Birmingham Six, the Maguire Seven and to the cases of Judith Ward, Confait and many cases in Australia—let us not overlook those—including the paradigm of all cases, the Chamberlain case of the dingo dog. When such cases occur, they are extremely damaging to the community's opinion of the quality of justice. The effect may be disproportionate, but there is no doubt that each one has a large effect on the public's confidence in the administration of justice.
Most of this ground has been well covered by the Select Committee and I can say what the noble Lord, Lord Dainton, sitting next to me, did not say, which is that the report is a remarkable one of which this House can feel justly proud. It deals with all the material which the Royal Commission was then able to incorporate into its own report. It deals with all the things that matter up to and including, in some ways, the trial of a case. I shall not go over again the ground that was so well covered by the noble Lord, Lord Dainton, about matters such as organisation, procedure, presentation of evidence, disclosure, liaison, training, legal aid, the code of practice and the giving of evidence in court. All those subjects were soundly dealt with by the Select Committee and the Royal Commission and are probably none the worse for being basically matters of common sense. They would probably have evolved anyway under the pressure of good practice. Nonetheless, it is good to have them set out explicitly in the Royal Commission's report. I am sure that they will command universal consent and can be carried out without money or legislation. They will undoubtedly improve the 819 quality of justice, make it easier to convict guilty people and make it more safe that the innocent will be acquitted.
But, when all that is done, there will inevitably remain the problem of the serious, difficult, contested case involving scientific evidence on both sides, when miscarriages can occur. This worries me. The question that I put to your Lordships is, "Can we accept that such cases are left to the normal process of decision by a jury trial?" That point has hardly been touched on by the Royal Commission. Of course, we shall hear it said, "Don't underestimate the jury. British juries are very reliable and usually get the right result in the end". We shall be told—as the report tells us on page 157—that, in a study carried out by the Royal Commission,jurors … claimed to have understood the scientific evidence without much difficulty",and that 94 per cent. of the judges consulted said that the scientific evidence was readily understandable by the jury.
That will be said, but we must relate those statistics to the study that was made. One finds that the study covered 800 cases in two weeks of February 1992, which, of course, may not have caught any case of serious difficulty. That that is the case is confirmed by Research Study No. 11—a very useful study—which examined 27 cases, all of which I have looked at. All were of a relatively simple character, such as cases involving cannabis or other drugs, blood tests and fibres of clothing. The great majority were not contested in court. There are still left undealt with the serious, complicated, contested cases.
Against the simple statistics that I have just quoted, I should like to make three points. First, there are some very bleak remarks in the Dainton Report. Paragraph 5.16 states:We also perceive a widening gulf of knowledge between the scientists and the lawyers and jury … The level of scientific literacy in the population at large is notoriously low; the capacity of scientists to express themselves intelligibly to a scientifically deprived audience has often been criticised; and these chickens come home to roost when a scientist is forced to explain complicated matters to an uncomprehending jury, under examination by barristers who may be unable or unwilling … to … bridge the … gap".Strong words.
Secondly, I could give a good quotation from the Chamberlain case in words approved by the High Court. Time does not allow me to give the total quotation, so I shall give your Lordships one sentence. It states:no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a position to assure himself of the correctness of a conclusion against the opinion of two professors",beyond reasonable doubt.
Thirdly, I turn to DNA profiling, which the Royal Commission rightly foresees as likely to be used more and more. Briefly, as your Lordships understand, this rests in the end on statistical evidence. DNA profiling can prove a man's innocence straightaway, but if it does not do that, it does not prove him guilty. All that it does is to say that there is such and such a chance that he is guilty—either a large or a small chance that he is not the person concerned. It is an estimate of probability—one in a thousand, one in 10,000, one in a million or 820 whatever the scientists say. That leaves us with this difficulty: how do the statements of probability, which is what the scientists give, match up with the concept of "beyond reasonable doubt" which is what the lawyer has to find? We find the Government Chemist saying—I quote from the Dainton Report—the prospects of getting across concepts of risk and uncertainty to courts are very complicated and difficult".
Where does this leave us? There is, of course, the lazy solution in which one says that this is part of the price of the jury system. One could say, "This is the system—good and bad. Errors may occur. They will not occur often but they will be corrected. It is just part of the price that we have to pay". The trouble with that is that the correction is very difficult for the courts to make. The Irish cases show that the ordinary processes of justice are fallible. The Australian cases show the same. The Chamberlain case had to go to the High Court, but even then was not corrected. Moreover, any correction takes a long time. Mrs. Chamberlain spent six years in prison. That is far shorter than what many of the Irish accused were called upon to endure. Unless careful care is taken—I address this remark to the Home Office—one cannot believe that that time will not be increased by the introduction into the machinery of an independent review body. There are grave doubts about that.
The alternative to the lazy solution is to provide, in exceptional cases, the assistance of expert assessors. The Royal Commission mentions that point but does not deal with it, except to say that it is not in favour of the suggestion. One cannot go into that here. The argument is clearly parallel to that which one finds going on in relation to serious fraud cases. I am sorry that the noble and learned Lord, Lord Roskill, is not in his place and is not going to speak. It is clear that in a case of serious fraud the position has to be re-examined. One cannot leave it where it is. That may carry with it an examination of the question whether in some cases assessors of some kind should not be added on to the machinery of jury trials.
We should not shrink from introducing some modification of the pure, undiluted jury system—basically, we are all in favour of the jury system—when that is demanded by the complicated and technological circumstances of modern life. In that, and that only—I say this with the great deference—I believe that the Royal Commission's excellent report needs to be taken a little further.
§ 6.11 p.m.
§ Viscount Caldecote
My Lords, I hope that the House will be indulgent to a layman speaking between two noble and most learned Lords. Several speakers have spoken of achieving a balance between the accused and the victim. The noble Viscount, Lord Runciman, referred to that point in his superb maiden speech. As a layman, I believe that greater emphasis needs to be put on the victims and potential victims. By potential victims, I mean those who may become victims if a guilty person is declared to be innocent and is freed.
Is it too much of a heresy to challenge the principle that it is better for 10 guilty people to go free than for 821 one innocent person to be convicted? That principle was established many years ago, fairly, and in accordance with our principles of justice, but it was in days which were less violent than now when we had the death penalty for murder. Times have changed greatly. We live in a time of terrorism, of murder of the police, burglars carrying firearms and crimes of violence all around us. Should we now weigh in the balance more carefully the injustice that will be done to someone who is wrongly convicted against the injustice and suffering that will be caused to the victims of those who are wrongly released?
Some way of redressing that balance might be for the new authority to be able to deal with cases where the CPS finds new evidence after someone has been declared to be innocent. I am aware that that goes against the principle that no person shall be tried twice for the same offence, but it puts the odds in favour of the potentially guilty person who may have been wrongly convicted, if his case can be reopened, while someone who may have been wrongly freed cannot, as I understand it, have his case reopened.
On a less contentious subject which is relevant to the debate and which touches upon problems similar to those raised by my noble friend Lord Elton, the noble and learned Lord, Lord Taylor, made the point that it is very much better to prevent crime than to deal with it. Sadly many young people today leave school maladjusted and start a career of crime soon after leaving school. As well as education in schools, there is a great need for what might be called pastoral care, a point referred to by my noble friend Lord Elton, to steer the energies and thoughts of young people into more constructive channels immediately they leave school. An organisation with which I have been connected for some time, Schools Outreach, tries to do just that. It has well trained people who go into schools at their invitation. They are welcomed by the schools. They give just that kind of pastoral care. Schools that have had the advantage of working with representatives from Schools Outreach praise their work greatly.
Where Schools Outreach has done work, it has been highly successful. Its work could be greatly expanded but for the lack of funds. My noble friend Lord Ashbourne—I have tried to help him—has tried for a long time to obtain grants from the Department for Education to support the excellent work done by that organisation. We have had an almost entirely negative response. The ball has been passed between the Department for Education and local authorities and back again. One cannot support the organisation unless the other does, and so on. The result is that the grant made to that splendid body has been minuscule. Better value is obtained from spending money on reducing crime and stopping young people from beginning a life of crime than spending a huge amount of money on trials and convicting criminals. I hope that my noble and learned friend on the Front Bench will take that point away and ask his right honourable friends to adopt a more positive and generous attitude to Schools Outreach and similar organisations. I am sure that there are many more such organisations of which I have no knowledge.
822 Lastly, I shall refer briefly to forensic science, a point covered by the noble Lord, Lord Dainton. I served on the Science and Technology Select Committee of your Lordships' House under his chairmanship. I am glad to see Recommendation No. 274 in the report. It is in line with the recommendation of our committee. I should like to see it go much further. That recommendation is that the new council for forensic scientists should keep accreditation under review. I would prefer to go further than that and have a register of qualified forensic: scientists. Anyone can practise as an accountant, an engineer or a secretary, but if one wants to ensure high quality one goes to a chartered accountant, chartered' engineer or chartered secretary. It should be the same for forensic scientists. It is not an easily definable qualification, but I believe that with care we could find. a way of registering forensic scientists. The courts would know that a person registered on that list would be responsible and able to deal with the difficult matters with which forensic scientists have to deal from time to time.
§ 6.19 p.m.
§ Lord Ackner
My Lords, the noble Lord, Lord Hutchinson of Lullington, in a characteristically passionate speech, emphasised that in his opinion one of the most important matters in the Royal Commission's admirable report was its recommendation to retain, as it now is, the existing right of silence. That being his view, I have decided to limit myself to that one issue. In a case (The Queen v. Director of the Serious Fraud Office ex parte Smith) decided last year, which concerned the director's right to pretrial interrogation under the: statute, my noble and learned friend Lord Mustill, who I am delighted to see is by my side, said that the subject of the right of silence causes strong but unfocused feelings.
The lack of acuity of thought on this important: subject is due to three errors. With the deepest respect to the noble Lord, Lord Hutchinson, I believe he has made all three. The first is the confusion that is caused by the misdescription of the right with which we are concerned. We are not concerned with the privilege against self-incrimination, which is exactly the issue on which he addressed most of his remarks; nor are we concerned with what was said on that subject in another case by my noble and learned friend Lord Griffiths. We are concerned with the limited question of whether an adverse inference should be drawn from silence.
The second error is that there is, or so it is assumed, some immemorial right which is deeply ingrained in the common law which gives rise to this so-called right of silence. In the case of Murray v. The DPP, which was decided last year, my noble and learned friend Lord Slynn, having heard considerable case law on the subject, as did the whole Appellate Committee, observed:It is clear that there was at the common law a divergence of view as to whether, and if so when and in what manner, a judge might comment to the jury on a failure to give evidence".Some 10 years ago this House debated the recommendations of the 11th report of the Criminal 823 Law Revision Committee on Evidence. With other Law Lords the late Lord Chief Justice, Lord Widgery, spoke:
He said:It certainly has never been the law of England … that a man could not be convicted on the evidence of his silence".—[Official Report, 14/2/73; col. 1624.]He gave two clear examples. The first was the well-known doctrine of recent possession, under which a person found in the possession of recently stolen property who, when asked, gives no explanation as to how he come into possession of it can be inferred by the jury to be either the thief or the receiver of that stolen property. Where is this deeply ingrained rule in that regard? His second example was that of the outraged father whose daughter has been assaulted. In a public space he remonstrates with the suspected man, who fails to answer the charge in circumstances in which one would expect an ordinary reasonable person to answer. That is clear evidence from which guilt can be inferred.
The question therefore arises: whence comes the assertion that this so-called right is one of the fundamental pillars of our freedom or, to use the phrase of the noble Lord, Lord Hutchinson, "reflects the very basics of the English law"? There are only two sources and they are not very old. The first is Section 1 of the Criminal Evidence Act 1898. The main function of that Act was to give the accused person for the first time ever the right to give evidence. Prior to that it was forbidden, essentially on the basis that if he gave evidence he ran the risk of prejudicing his immortal soul. Section 1 provided that only the judge may comment on the failure of the accused to give evidence. Exactly why that provision was included in the Act is difficult to follow. It is a thoroughly unsatisfactory situation that the judge, who is meant to hold the balance between the prosecution and the defence, shall have any burden to take a point which the prosecution is forbidden to take. That was the genesis of the proposition; that the judge only and not the prosecution can comment on the failure of an accused person to give evidence.
Whence comes the prohibition to comment on an accused's failure to answer questions put by the police? I am sorry to have to say that that is entirely the fault of the judges. The first addition of the Judges' Rules, published in 1906 or 1908, provided the terms of a caution. It is well known to your Lordships; that a person is under no obligation to make any statement and that if he does so it may be used in evidence. It followed from that that, having told the accused that he was under no obligation to say anything, it would be monstrous, he having accepted the invitation and said nothing, adversely to comment on his silence. Those are the only two foundations from that time immemorial foundation of the very system of British justice. That is the second error and an error made by the noble Lord.
The third error is to suppose that, if the right of silence were abolished, there would be a substantial shift in the obligation of the prosecution to discharge the onus upon it, which is fundamental, to establish guilt beyond reasonable doubt. That is a confusion of thought. The onus has absolutely nothing to do with what evidence can or cannot be taken into consideration. 824 What is being contemplated is the abrogation of a rule which prevents certain material being put before the jury. That material is there to facilitate establishing guilt. It has nothing to do with diminishing the onus upon the prosecution to prove its case.
Your Lordships are probably well aware that as long ago as 1967 there was introduced the provision that a person who wishes to rely upon an alibi must give notice of that to the police. The heavens did not fall when that provision was passed. But that exists precisely in order to facilitate the work of the police in establishing the case that they wish to bring. If no notice is given, the alibi cannot be used without the consent of the court. If details of the alibi are given, the police are in a position to be able to investigate its validity. It is all designed to facilitate proof; it has nothing to do with shifting the onus.
The present law is quite indefensible. I shall not worry your Lordships by quoting Jeremy Bentham, whose view is well known. He said that if all the crooks were gathered together one could not think that they would wish to invent a more useful restriction than that which already exists.
In an article in the New Law Journal for 1987 Professor Glanville Williams gives the example of an accused person who relies on an alibi. Because he does not wish to be cross-examined he has the evidence of his family called but he does not give evidence himself. Is it really common sense that the judge should be restrained from saying, except in the most colourless of terms, "Well, members of the jury, you may think that it is a remarkable thing", and so forth?
I am not concerned with whether the abolition of the rule results in another 50, 100 or 200 people being convicted. I am concerned that we should get rid of artificial rules which are repugnant to common sense. I am concerned that there should be a change of attitude by the lawyers. I remember from my own past that the first thing you did when a heavy defence case was brought in to you was to ask, "Has he said anything to the police?" If the answer was no, you gave a great sigh of relief and congratulated the defendant. That should be reversed. The present situation should be that the lawyer says to the accused, "If you have not already put your defence on record, then we must lose no time about it". That will enable the police more effectively to investigate the case and often to discharge from any future prosecution the very person who is suspected.
§ 6.30 p.m.
§ Lord Gisborough
My Lords, this is an extremely interesting report, on which I wish to mention only a few points. First, I wish to reinforce the points made by my noble friend Lady Seccombe, which were made even more forcefully by my noble friend Lord Elton. That is the fundamental and controversial point set out in recommendation 114 that, in the absence of agreement by the CPS and the defence, magistrates should be able to decide the mode of trial.
That is opposed on the grounds that it strikes at the root of the constitutional right enshrined in Magna Carta of trial by one's peers. But that is to ignore the modern magistracy which comprises a group of ordinary people 825 of reasonable intelligence who are elected for their ability to comprehend, to be fair and unbiased. They have experience and are deliberately chosen to represent a cross-section of society, both politically and by background. They are probably a far better cross-section than a random sample on a jury. Therefore, trial by magistrates is trial by one's peers.
I am delighted that the right of silence is to be reduced. That matter has been taken up extremely ably by the noble and learned Lord, Lord Ackner. It will be interesting to see whether the proposal that the jury should be able to take silence into account will be effective. But certainly there is a variation in the degree of culpability to be inferred from silence. An innocent person has nothing to fear from saying that he was not at the scene of the crime. On the other hand, a motorist after an accident might unfairly incriminate himself while he was not fully aware of what happened. In such circumstances, as the noble and learned Lord, Lord Ackner, mentioned, a solicitor will usually advise his client to say nothing for fear of falling in the trap and unjustly incriminating himself. Therefore the inference to be drawn from silence is not clear cut. However, the right to silence has been abused and some change must be made.
Recommendations 132 to 138 propose compulsory defence disclosure before trial. That is attractive in theory as it would enable some issues to be crystallised, and in some cases it may lead the prosecution to drop its case. However, in practice, those may be pious hopes. Much more importantly, it erodes the principle that the burden of proof rests with the prosecution and conflicts with the recommendation of the commission that the right of silence should be maintained. Therefore, while disclosure of the defence line is desirable, it will have to be introduced with considerable care.
Recommendation 157 as regards canvassing sentence before the trial judge is a good system. That has always gone on in many parts of the country despite the disapproval of the Court of Appeal. It saves time and money and is fair to all concerned.
One point not covered in court design is the separation of witnesses from the accused. In a contested case even a word or a look can intimidate when the witness and the accused see each other close to before entering the courthouse. I believe that the separation of witnesses and accused should be taken into account, particularly in strongly contested cases.
I am particularly glad that recommendation 101 proposes that victims of crime should be kept informed of the outcome of a case. At present nothing is heard, and the public either blame the police or the courts for failing to follow up a reported crime. The result is either that people no longer bother to report crimes because they believe that nothing will happen and it is a waste of time or they may take the law into their own hands. It must be possible for a victim to be informed of the outcome of a case when it is finally concluded.
Very often witnesses fail to turn up at court. That results in much wasted time for other witnesses and costs the court and other individuals a great deal of money. As contested cases are always heard on an agreed date, the defence should be able to ensure that 826 witnesses are present. If it is known that they are unable to attend through illness or for other reason, the case: should be put off by arrangement with the clerk. beforehand. That would remove the necessity for other people to attend in vain. The recommendation as regards pretrial reviews would also increase efficiency.
Where a witness does not turn up without an excuse the case should be presumed to proceed without him. The result would be that solicitors and defendants would take a great deal more trouble to ensure that their cases and witnesses were ready to go ahead. That would save: a great deal of time and money. One recent case came before the court for a fifth or sixth time because an insurance company would not provide a copy of an insurance certificate which a defendant had lost. Perhaps that company should have had costs awarded against it for wasting court time. However, the manager has now been summoned to attend.
To support that, there is no doubt in my mind that the new rules governing legal aid have had a dramatic effect already by reducing the number of adjournments requested by solicitors, who now prepare their cases in time. They are therefore asking for fewer adjournments.
In the end it is a question of finding arid punishing the guilty and acquitting the innocent. Perhaps I may tell a tale. I was at a magistrates' conference in Durham. At: the end of the course, there was an exercise in which we were divided into groups. Some magistrates sat as the Bench and others acted the part of the defendant, and so on, as had happened in Durham Court for real. At the end, the Bench of which I was a member decided that the defendant was guilty. Indeed, the man had been found guilty in Durham court when his case was tried. However, all the other six Benches found him riot guilty. That makes one think.
This is a very interesting and comprehensive report. I believe that it will set the stage for criminal justice for many years to come. I hope that the recommendations are swiftly enacted.
§ 6.38 p.m.
§ Lord Benson
My Lords, I wish to speak on only three subjects. First, I wish to say with all the conviction that I can muster that I support the views of the noble and learned Lord, Lord Wilberforce, on the subject of jury trials. But I do not believe that there is any ground to be gained by pursuing that elusive hare this evening.
Secondly, I have no legal or technical knowledge to know when the right of silence should be applied or relaxed. That is an extremely intricate question. However, I believe that the right of silence should be abolished. As I understand the practice of justice in this country, an impartial tribunal is appointed which is required to inquire into the facts of the case, riot some but all of the facts. How it can possibly arrive at a proper and fair decision when some of the facts are deliberately concealed from that tribunal passes my comprehension. As I understand it, in civil litigation all the facts must be disclosed by both sides. If that is necessary in the pursuit of justice in civil litigation, I see no reason why it is abandoned in criminal litigation.
My third point is different, and I speak on the subject with a certain amount of technical experience. I believe 827 that in serious fraud trials it is imperative that the defence should disclose fully what is the defence and the names of the witnesses at the time of the preparatory hearing. That is not the case at present. The matter was examined most carefully by the fraud trials committee under the chairmanship of the noble and learned Lord, Lord Roskill. I was a member of that committee. We recommended that the full prosecution case should be disclosed to the defence. We then said that we thought that the defence should disclose the general nature of its defence, but need not disclose the names of witnesses. Those recommendations were duly enshrined in legislation.
Looking back with hindsight over a period of eight years, I believe that the latter was a very feeble recommendation for the Roskill Committee to make. The reason behind it was a certain diversity of view among members of the committee. However, I believe the real reason was that we were already breaking new ground on the right of silence and we did not want to go too far in the initial stages.
The whole object of the procedures in serious fraud trials now is that both sides should disclose the situation so that the issues can be narrowed, with the result that matters which go before the jury are reduced in number and volume. However, that does not take place because defence lawyers do not disclose the defence either fully or properly; they use the loose wording of the legislation to enable them to do that.
If the proposed change was made in the legislation, I believe that it would have a dramatic effect on serious fraud trials. Many of the charges on the indictment would not be pursued. If the defence fully disclosed its case, some of the charges would not be worth pursuing. However, it would have another very important effect in that there would be many more pleas of guilty. In many cases, the defence case would prove to be so weak that there would be no object in the accused pursuing his defence and a plea of guilty or plea bargaining would be likely to take place.
I have studied the Royal Commission's report on the latter and I am happy to see that in paragraph 61 of Chapter 7 it supports the view that I have been trying to express to the House. However, it was only a majority view. When the new legislation is drafted, all I urge is that the majority view of the Royal Commission's report on the issue should be adopted.
§ 6.42 p.m.
§ Lord Wigoder
My Lords, we have heard a series of most distinguished speeches, not least from the three maiden speakers. We are dealing, I suppose, with a problem that arises, in the words of the noble Lord, Lord Campbell of Alloway, as part of our disordered society. Perhaps we should put the matter in its perspective. The social evils that surround us are far too widespread to be cured by any changes, however radical, in our criminal justice system. Those of us who are lawyers and who sometimes have an inflated idea of our own importance in putting the world to right, should perhaps recognise that our role is really rather limited.
828 Indeed, if one looks at the particular social evil which is linked with the question of our criminal justice system, one realises that the system in itself plays a very minor role. I refer, of course, to the apparent breakdown in law an order. The criminal justice system impinges on that in many ways. However, far more important than lawyers in dealing with the problems associated with the breakdown of law and order are the contributions that should be made by our politicians, our economists, our social workers, our bishops, who sometimes sit on the Benches opposite, our journalists and, above all, our parents and teachers. They have a far more important role to play.
What we seek to do with our criminal justice system is, I believe, agreed by everyone present. It was referred to by my noble friend Lord Hooson as being simply the fact that in an efficient and cost-effective way we try to ensure that most guilty people are convicted and sentenced appropriately and that the very minimum of innocent people are convicted or, indeed, arrested and charged. The difficulty is that it is only the individual concerned who knows whether he is innocent or guilty. All that the rest of us can do is try to make intelligent inferences from careful observation while recognising that we may well be wrong.
After some 35 years or so of involvement at the criminal Bar in almost every capacity, except that of a prisoner, I have come to the conclusion that if one accepts—as, of course, one does—that the burden of proof is on the prosecution, then the overwhelming majority of defendants against whom the case is proved are convicted. I say that because of one's own observation and, indeed, the observation of most trial judges who have had to handle criminal trials and listen to the verdicts of juries over and again during their careers. It has been shown by analysis that the views of most of those judges are that, in practically every case, they have found it impossible to disagree with the verdict of the jury. Therefore, when we come to consider, for example, the limitation of the right to trial by jury, let us not become involved in any discussion of the view that in some way juries may be softer or easier to persuade than a single judge.
However, despite the fact that the overwhelming majority of guilty defendants are convicted, it is still suggested—apparently by the Government—that some guilty defendants are avoiding conviction by exercising what we have all agreed to call the right of silence, even if it is not a very accurate description. The Royal Commission examined the issue with considerable care. Perhaps I may read to your Lordships the words of the report's conclusion at paragraph 22 on page 54:The majority of us … believe that the possibility of an increase in the convictions of the guilty is outweighed by the risk that the extra pressure on suspects to talk in the police station and the adverse inferences invited if they do not may result in more convictions of the innocent".That was the view of the majority of the Royal Commission. However, the Government have indicated that they take a different view. In what was probably not a very carefully considered speech at the Conservative Party conference, the Home Secretary indicated that the right of silence was about to come under substantial modification by government legislation. Perhaps I 829 should not criticise the Home Secretary: party conferences are not the right venue for carefully considered observations.
We all listened with great respect to the virulent attack of the noble and learned Lord, Lord Ackner, on my noble friend Lord Hutchinson of Lullington who is, I believe, an old sparring partner of the noble and learned Lord. I can only say that it was extremely courteous of the noble and learned Lord to disguise what was really an attack on the noble Viscount, Lord Runciman, and the Royal Commission by pretending that my noble friend Lord Hutchinson was the target.
The so-called right of silence is a far more involved issue than discussion has so far revealed or the Government have indicated. It is not simple. A whole series of matters have to be borne in mind. For example, there is a defendant's attitude when he is first apprehended at the scene of the crime. What weight, if any, is to be attached to his silence at that time? There is the position when he is first taken to a police station. There is the position when the police have made up their minds that he should be arrested and have cautioned him. Those two situations, which are very different, are again radically affected by the question of whether a solicitor is present and whether the solicitor has advised the defendant to say nothing or to answer the questions. All those considerations materially affect the position and give rise to different sets of circumstances.
Finally, there is the situation at the trial. I believe that that is the aspect on which the noble and learned Lord the Lord Chief Justice concentrated. That also gives rise to totally different considerations.
Having looked at those six, eight or 10 different situations in which a defendant may choose to be silent, if one is to abolish the right of silence one has to consider what inferences the jury ought to be left to draw from the fact that the defendant has been silent. Is it suggested that guilt can be inferred from silence? Is it seriously suggested that, if a man is arrested in this country and says nothing, without any further evidence a jury could find him guilty? Not even the Home Secretary would hesitate to reject that proposition.
Or is it suggested that silence can perhaps corroborate other evidence of guilt? In other words, is it in itself of some evidentiary value? That again is an odd situation. It is not one that I have heard suggested, but I do not know what the position is at present nor what the Government propose should be the effect of abolition of the right of silence.
There is a third possibility, which I suspect the Government may have in mind—namely, that in certain circumstances it may form the basis of a legitimate comment by the judge or prosecuting counsel in relation to the defendant who at the trial has given an explanation as to his innocent involvement in the case. It might be appropriate to say to the jury that before they decide whether there is anything in that explanation they should bear in mind the fact that when the defendant was given the chance to make that statement days or weeks earlier he chose not to take it.
Those are quite different circumstances and different criteria. It would help very much if before we got much further with this debate the Government were to make it 830 clear in what circumstances they propose to modify the right of silence and what weight they would propose to invite a jury to attach to the fact that a defendant has been silent.
I appreciate that there is a superficial commonsense attraction behind some of this. However, to take an extreme case, if in the dock there is a politician who has spent the whole of his life desperately fighting to appear in the media and to answer every question that he is asked and a great many questions which he is not asked, it might well stretch credulity to the utmost to say that it was not in the least unusual that that defendant had chosen not to say a word when the police invited him to give an explanation in the police station a few days earlier.
While the proposal has a certain superficial commonsense about it, I doubt whether it goes further than that. Like the majority of the members of the Royal Commission, I believe that it is clear that in a police station the great majority of ordinary, decent people are capable of becoming nervous, confused and frightened of authority, and that in general circumstances it would be wholly wrong to draw a hostile inference from their silence. I therefore believe that the Royal Commission and my noble friend Lord Hutchinson are correct and that the noble and learned Lord, Lord Ackner, is mistaken.
That is the position in relation to a measure which the Government propose to introduce and which they hope will increase the number of guilty people convicted. As to ensuring that the innocent are acquitted, in my experience, very few people who were in no way involved in the commission of the offence with which they were charged have nevertheless been convicted of its commission. I believe that the number of cases is very small and that they are usually, although not always, the result of an honest case of mistaken identity. I very much welcome the proposals which will deal with that possibility.
Very occasionally there are cases in which it appears that false confessions have been faked or extorted. The question arises as to whether those cases are such as to give rise now to the requirement that any confession should be corroborated before a jury can act upon it. I believe, along with the Royal Commission, that that would be a wholly unnecessary and retrograde step. As the Royal Commission pointed out, and as is self-evident if one thinks about it, a significant number of people against whom there is no other evidence make confessions, go to court and are perfectly content to plead guilty and never for one moment afterwards attempt to plead their innocence. None of those people could even be charged if we were to say that confessions were not in themselves capable of being adequate evidence.
Obviously, where the only evidence is a confession, the judge will have to exercise his discretion in controlling the proceedings and making appropriate comments to the jury. However, as audio and visual recording techniques improve, those warnings may become much less necessary.
In the recent series of notorious trials—and I am not referring to any in which I was involved, because I 831 happen to belong to a dwindling band of lawyers who believe that it is totally improper to comment on cases in which one has been involved personally—convictions have been quashed. The general public have come to believe that this was because confessions were invented by the police. Analysis of those cases shows that in most of them that was not so. In most cases the convictions have been quashed because it has been demonstrated that the police evidence about the taking of the confessions was fabricated and was untrue. Whether the confessions themselves were true was not the issue at stake. I could develop that point a little further but I do not propose to do so at this stage because I have already exceeded the time allowed, even for one winding up.
I join in congratulating the noble Viscount on the report of the Royal Commission. Unlike most reports this one is clearly not going to be pigeon-holed. Some of the proposals will be adopted. Others will be refuted by the Government. I hope that we shall have a chance to debate all of them in full when the legislation is brought forward.
§ 6.58 p.m.
§ Lord Williams of Mostyn
My Lords, I endorse wholeheartedly the thanks which noble Lords have expressed to the noble Viscount, Lord Runciman. I do so on two bases: first, the masterly quality of the report and, secondly, the quality of his maiden speech. As he will remember, I gave evidence to his commission, at my own request. I know now the feelings of a private soldier cross-examined by 11 field marshals. I echo also the thanks of the House for the maiden speeches of my noble friend Lady Gould and the noble and learned Lord, Lord Lloyd of Berwick. I have known the latter, in different circumstances, through my appearances before him. I have always found him to be a judge of grace and discrimination.
It is invidious to single out members of the Royal Commission, but I shall wilfully sin by mentioning two: Professor Zander, who has laboured in this particular vineyard for so long, and Sir John May (Lord Justice May as was) who undertook the courageous task of untangling the monstrous wrongs that were done to the Maguires knowing that it would be unpopular with his colleagues, as it was.
The debate is an opportunity which may not recur these many years. As the noble and learned Lord, Lord Ackner, rightly pointed out, it is only for 100 years or so that a defendant has been able to give evidence at his own trial. It was even less than 100 years ago that the modern Court of Criminal Appeal came into existence. We on this side do not wish the debate to degenerate into a political football. It has not done so this evening; we hope that it will not do so in the months to come.
There are four questions to be addressed in defining the characteristics of a criminal justice system which will be acceptable to all? First, the guilty should be detected, charged, convicted, and suitably punished. Secondly, the innocent should not be charged; if charged they should not be convicted; and if convicted they should be promptly discharged on appeal. Thirdly, 832 our system should conform to the standards of the civilised society in which it operates. Those standards should include as a minimum a tender consideration for the rights of victims, a consideration far too long lacking. Finally, the system should be efficient and cost effective.
Many noble Lords have adverted to the fact that our present thoughts are running hand in hand with another debate, to which the noble and learned Lord, Lord Woolf, among others has contributed with such distinction. I hope that those who have criticised the noble and learned Lord will take upon themselves the burden of reading what he said. It is disagreeable, to me at least, to hear uninformed packs snapping at feet of such distinction. The noble Lord, Lord Wigoder, said that the Home Secretary's speech at Blackpool was not considered. I am afraid that it was carefully considered.
Our stance is governed by the four principles I have mentioned. On this side of the Chamber we wish to take a calm and considered view, recognising that the only sure and certain foundation for a criminal justice system in this country is public confidence.
I turn briefly to victims. I know the work that the noble Lord, Lord Windlesham, has undertaken over the years. I have had the privilege of working with victim support groups. Victims are not simply complainants. They are relatives. They are witnesses. And all of them, in different ways, suffer the strains which our system puts upon them. In particular one thinks of complainants in rape cases, or children who complain that they have been wickedly abused. I do not overstate it when I suggest that the wounds which our system imposes upon those complainants are sometimes as bad as the original wrong done to them.
I suggest that at the very least judges who try allegations of sexual abuse against children should be part of a nominated panel, properly trained and properly selected in the way that judges were trained and selected under the Lord Chancellor's scheme under the Children Act. It is intolerable that complainants or witnesses in that class of case should see, or have the fear of seeing, the defendant in the same court building. It is important, as the report of the commission states, that there is a proper use of segregated facilities for witnesses and complainants in such cases. It is the very least that a decent system should provide. It is only through organisations such as Victim Support that we practitioners have begun to realise the wrong in which we have colluded. It is essential that video testimony should be used not just for child complainants or witnesses but for witnesses generally. It saves time. It stops people being alienated by our cumbersome procedures. It is cheap and efficient. But, as the noble Lord, Lord Windlesham, pointed out, there will be no new money.
The independent review body is long overdue. It has always been a constitutional monstrosity, utterly incapable of support, that the Executive in the form of the Home Office should have anything to do with the referral to the Court of Appeal of alleged miscarriages. Our stance is plain. That independent review body should be set up as soon as possible. It must be properly equipped. It must have good investigative facilities so 833 that secondment to such a body is regarded as a career move or a career benefit for a senior police officer or a lawyer. We believe that ultimately it must remain for the court system to decide on miscarriages although the independent review body has a significant role to play.
On the right of silence, it was a pleasure to witness yet again the scalpel of the noble and learned Lord, Lord Ackner, attacking the problem in the way that he did. I do not ultimately agree with his analysis, so one of us may be mistaken. The analysis put forward by the noble Lord, Lord Wigoder, is the one that matters, as anyone who has practised in the criminal courts knows. When a human creature is in a police station in custody, unhappy, uneasy and weakened, it is foolish to think that abolition of the right of silence in our criminal system will not increase miscarriages. We need to distinguish, as did the noble Lord, Lord Wigoder, between the situation of a man in a police station, who may not be properly advised, and subsequent events. We are adamant that the right of silence in the police station must remain.
As the Lord Chief Justice pointed out, when the case is fully known, by the prosecution as well as by the accused, and the prosecution has presented it to the accused, it may not be unreasonable, as the Royal Commission suggests, that the broad nature of the defence should be tendered. I bear in mind the pre-emptive strike that the noble Lord, Lord McIntosh of Haringey, made. I see the attractions of that approach. But the noble Lord, Lord Wigoder, asks—we would wish the noble and learned Lord the Lord Advocate to deal with the question in specific detail—what is the Government's claimed approach to those who say nothing at trial? Is it to allow, as the Lord Chief Justice said., the presiding judge and judge alone, and not the prosecutor, to be able to say such words as, "You have heard the attacks made on the prosecution. No positive evidence has been called by the defendant or evidence given by the defendant himself to destroy those"? That is one situation. We await the answer to the question with some eagerness: what are the Government talking about when they refer to the right of silence?
I listened to the historical analysis of the noble and learned Lord, Lord Ackner, and his chiding—it may have been direct or indirect—of the noble Lord, Lord Hutchinson. However, the point is this. The moral underpinning of the right of silence on challenge in the police station is this. The state in our country is not all powerful. The state is not authoritarian and does not have overweening power. The fundamental point is that in this country at least the citizen's self is his castle. His ducal acres or his council flat do not matter in that context. It is his "self' which is his castle. That is the castle which we wish to protect when a man or woman is in a police station in those circumstances of weakness.
We should bear in mind that every one of the headlined miscarriages of justice with which we are all so tarred started to take on its own illegitimate life in the police station. Are we now to embark on that journey for short-term political advantages? I am sorry to use those words.
There is extremely valuable material in the report about the training and monitoring of judicial 834 performance. My view on judges, which I have expressed to your Lordships on a number of previous occasions, is that the quality of the judiciary in this country is of a remarkably high standard. We are fortunate. The proposals of the Royal Commission, which I personally endorse, are simply an attempt to improve, maintain and secure the standards which the judiciary attains. It is important that there should be training and retraining after appointment. A circuit judge at present is obliged to go on a seminar which lasts one week every five years. As the report pointedly makes plain at page 140 and the following pages, that is simply not acceptable. Most judges regard it as not enough for their everyday purposes.
I agree with the remarks of the noble and learned Lord the Lord Chief Justice that judges must, in a curious way, become more interventionist in the conduct of the trial and pre-trial and perhaps less interventionist in the way that they sum up cases. If that is to be done, nominated judges need to be appointed at an early stage in serious criminal cases. They must have the control of the case; they have to identify the issues if they can, with the assistance of the lawyers; and they need to isolate the real issues. All those are matters of practice and should be taken as part of the general prescription in the report of the noble Viscount, Lord Runciman, not on the basis of the cherry-picker or, as I believe is the case in Woolworths, of going to get your "pick'n-mix" when you are about to pay on the way out.
There will be no derogation on our side from the value of jury trial. Those who wish to deprive others of it find difficulty in answering the question which I sometimes put to them: "If you or your wife were charged with shoplifting a pound of bananas from Tesco, which forum would you want? Or at least, which forum would you like to be able to elect?" I have never heard anyone suggest that they would not wish for themselves or their close relatives the right to trial by jury. Of course, they turn philosophical when I put the question to them about someone else.
It was said by the noble Lord, Lord Elton, that remand places are over-full. I entirely agree. The noble Lord makes such a comment—and I agree with it—at a time when the Home Office is reducing provision for bail hostels and when Crown Court sittings are being cancelled on every circuit. On my own circuit and that of the noble Lord, Lord Hooson, 500 judge days have been cancelled for this coming year—two judge years. Why? Because the fee income to the Lord Chancellor's Department has gone down by £40 million.
On plea bargaining or plea canvassing, as the noble Viscount's report calls it, first, it happens every day in every court. Secondly, there are no safeguards at all for defendants at the moment because it is all fudged in secret. My view is that if a defendant wishes to know his likely sentence and if it is expressed that it must be at his initiation and his choice alone, I see nothing wrong with it, as long as those discussions are recorded, transcribed and no effect can be given to the plea canvass or plea bargain for a particular period of time. Shall we say 24 or 48 hours? There would be safeguards for those who are at present left with no safeguards at all.
835 The point that we commend to your Lordships is that plea bargaining does not have as its first attraction the saving of time and money, though those are necessary incidentals. The chief point about plea bargaining is the moral value to, and effect on, the victim, the complainants, the witnesses and the public of the public acceptance of guilt by an accused person who is truly guilty.
There are many other matters within this admirable report. I have had an opportunity to touch on very few. Apart from the fact that it is at the police station that things have always gone wrong in the headline cases, a significant aspect of most recent miscarriages—not the Maguires because they made no confessions—is the over-reliance on confession evidence. It has been the bugbear of our criminal system in this country. At the least, a confession, we suggest, should not be admitted into evidence unless it is in the presence of a solicitor or tape recorded, preferably video recorded, or affirmed subsequently in the presence of a judicial officer or confirmed by other material. That may be claimed to be the panacea in Scotland, but all the conversations that I have had with our legal colleagues in Scotland indicate that it is not necessarily such a marvellous system in practice.
Those are the brief thoughts that I must put before the House. I commend yet again, with the deepest respect, the quality of this extraordinary report which has done such a public service.
§ 7.15 p.m.
§ The Lord Advocate (Lord Rodger of Earlsferry)
My Lords, I shall begin by thanking my noble friend Lord Windlesham for bringing this matter before the House. It has certainly proved a most interesting subject which has given many noble Lords an opportunity to participate. I should like to thank all those who have participated and made such a contribution to this initial—because it can only be initial—discussion of the Royal Commission's report.
Perhaps I may also first congratulate the noble Baroness, Lady Gould of Potternewton, on her contribution in her maiden speech. That gives a forecast of great contributions to come. She already strongly identified a theme which I am sure she will develop in her contributions to debates in your Lordships' House—the theme of the position of women and in this case particularly women in the criminal justice system.
I do not feel able to take up all the points which the noble Baroness made in her contribution, but suffice it to say that the existence of legislation now makes sure that specific information is collected about the treatment of women, as well as ethnic minorities, in the criminal justice system. So it will be possible to obtain information which will be able to focus the discussion of those matters for the future.
Perhaps I may also mention the maiden speech of the noble and learned Lord, Lord Lloyd of Berwick. That was another remarkable contribution which came from enormous experience which even came into the particular circumstances of the case which gave rise to the Royal Commission. His speech showed that he has 836 great knowledge and wisdom which will be invaluable to the House when it comes to further discussion of the topic.
I now turn to what surely must be one of the most remarkable maiden speeches that has been heard in the House—that of the noble Viscount, Lord Runciman of Doxford. We all noticed with astonishment and profound admiration how he delivered his speech with such fluency and without any apparent reference to notes. He put many of the legal Members of your Lordships' House to shame, even though perhaps we should also be able to do that more than others.
Like the noble Lord, Lord Williams, I had the experience of appearing in front of the remarkable commission. Therefore I was not at all surprised by the clarity of thought which came out in the commission's report, nor at the penetrating way in which so many of the issues were dealt with. Certainly, I found it a challenging—using a polite word—experience, which was, I am sure, very valuable for those of us who appeared before the commission.
When considering the report, one has to take it in its general context, as has been said. Your Lordships have heard contributions from the noble Lord, Lord Wigoder, my noble friends Lord Elton and Lord Caldecote, who spoke about the wider context in which the Royal Commission worked. I cannot this evening go into that because of the restraints of time. But we all recognise that the Royal Commission, and indeed the whole legal system, operates in a wider context, and that what really matters is somehow or other tackling these wider problems as well as the problems which are peculiarly those of the criminal justice system.
Again, we heard of the aims of any criminal justice system. For my part, I would not quarrel with any of the formulations of which we heard, least of all perhaps with the formulation of the noble Lord, Lord Williams of Mostyn, who set out four principles with which I do not believe anybody could quarrel as being the principles of any civilised criminal justice system. It certainly must be its job to convict the guilty and to punish them appropriately. It certainly must make sure if possible that the innocent are not charged, and certainly that they are acquitted, or that they are released as quickly as possible on appeal. That must obviously be so. It is important that the civilised values of our justice system should be enshrined in it.
However, it is also very noticeable that, as was remarked, this Royal Commission was set up because of genuine worries as to whether the criminal justice system in this country was in a state of crisis; whether it required some fundamental reform, for example, by way of introducing an inquisitorial system. One of the most important aspects of this report is that basically it affirms the soundness of our criminal justice system, and in particular does not suggest that we should depart and introduce some sort of inquisitorial system. It has been said that that question could have been more deeply gone into. But it is important to remember that this was not a Royal Commission, for example, comprising a majority of lawyers. On the contrary, it was a body composed of people who were not lawyers and who were therefore looking at the system, so to 837 speak, a little bit from outside. Therefore I think that when we find that they., having looked at it, and having acquired knowledge of other systems, affirm that our system is basically sound, then we who are lawyers and who might feel somewhat reluctant or hesitant to make such a statement about our system, can take comfort in the fact that such a distinguished and objective commission has found that the basic system is in fact sound.
Another very important point which emerges from the report—one which has perhaps not been stressed greatly today—is the importance which is attached by the Royal Commission to the early stages in any criminal case. In particular, it stresses the importance of the role of the police. It points out at the beginning of Chapter Two of the report that it really is the work of the police and the manner in which they conduct their investigation which is of fundamental and critical importance to the functioning of the criminal justice system. And that must be right. It must be important that the evidence which is collected and in due course put by the prosecution in front of the court is as sound as it can possibly be. Therefore, that is why we particularly welcome the emphasis that has been put by the Royal Commission on the need for good police practices, and in particular for training.
The Royal Commission has pointed out that police officers must be properly trained. The new national training package has been devised in order that basic interviewing skills can be refined. That report has now been made available to all police officers. Material has also been incorporated in a new foundation course for police recruits. In other words, a lot of work is going on to make sure that for the future police officers will be trained, and will be sensitive in particular in the way in which investigations are being conducted and in which interviews are conducted. That is an important matter. If the input of the police can be ensured to be good, then that will ensure that the basic material with which the prosecution is working is as sound as it can possibly be. There is no doubt that it is difficult, once a case gets into the system with bad evidence—for whatever reason; it may be concocted evidence, and so on—it is much harder at later stages, even in the Appeal Court, or even with some review body, to put things right. It is much better if possible to make sure that things do not go wrong in the first place.
In this massive report, with its 300-odd recommendations, it is inevitable that there has already been some picking and choosing among recommendations. It has been pointed out that the Government have already accepted some of the recommendations and have not yet announced their decision on others. It has been suggested that the Government will pick some and will reject others. I do not think that I can avoid saying that that is likely to happen. The decisions have not yet been taken. It is likely to happen, and I do not think that that is surprising. I doubt whether any noble Lord who has spoken on more than one or two recommendations today has agreed with all the recommendations of the Royal Commission. Most noble Lords have accepted some and suggested that perhaps another one is not correct. That is not surprising. This is a most difficult, 838 controversial and sensitive area, one where the issues have to be discussed and thought about, and where opinions may genuinely differ.
Not all of the recommendations are for the Government. There are some for the Bar, and some for the Law Society, for example. We look forward to those bodies taking the recommendations forward and making in that way their contribution to the improvement of our system.
Among the recommendations that have been accepted are the recommendations in relation to victims I do not think that I need to apologise to any of your Lordships for the fact that my right honourable friend the Home Secretary chose to highlight those in his speech at the party conference. After all, as has been said, the position of victims has been somewhat neglected by the legal profession, and by the criminal justice system, in the past. It is very important that the rights of victims should be recognised and that as much is done for them as is possible. Some of the things that can be done can be done without expenditure of money. They require more a change of attitude than any positive input of resources. Others will require an input of resources. It is no secret that. priorities will have to be determined in deciding which particular proposals should go forward first and which will have to wait. But it can certainly be said that the Government will do everything that they can to assist with the position of victims.
Other proposals will undoubtedly require careful examination which will take some considerable time. My noble friend Lord Windlesham sounded a note of scepticism about the position of the Home Office in relation to the review body. However, if I may say so, there was no reason for my noble friend to be sceptical. If no decisions in these matters have been announced, it is not because work is not going on, but precisely for the reverse reason: that on these matters work is going on.
It is obvious that the Royal Commission had only two years in which to tackle this immense variety of problems. For example, when it came to the matter of the review body, it did not lay down a detailed blueprint for that body or for its relationship with the Appeal Court. That is a matter of great sensitivity and great importance. It is a matter which it is absolutely vital to get right. For that reason I make no apology for the fact that it may be some time before these proposals are formulated and put out for consultation and people have an opportunity to discuss them. It is a matter of critical importance and a matter which there is no point in rushing. It is much better to get it right than to hurry and get it wrong.
One can follow through the proposals in various stages. As I said, there are the police to begin with and then there are other people who contribute to the possible evidence of a trial. In that respect some considerable play was made of the matter of forensic science. If I may say so, there is no doubt, as the noble Lord, Lord Dainton, said, that forensic science is likely to play an increasingly important role in criminal trials. Noble Lords will welcome that. Obviously the more that scientific techniques can do to present to the jury matters 839 which can be accepted as reliable pointers to guilt or innocence, the more the criminal justice system should properly be able to carry out its functions.
In that connection the report of the committee chaired by the noble Lord, Lord Dainton, as well as the report of the Royal Commission made very important proposals in relation to standards, testing and the matter of registration. They are all being considered and in particular consideration is being given to the matter of an advisory council and exactly how it would be set up if it were to be established. As the noble Lord, Lord Dainton, said, and his remarks were echoed by the noble and learned Lord, Lord Wilberforce, in a criminal trial the manner of presentation of forensic evidence is of the greatest importance. Again, much will need to be done to ensure that presentation is refined and training is carried out in the best way.
It is very important that we should not have experts who cannot convey their message to the people to whom it matters in a trial; namely, the jury. I noted with great interest the remarks of the noble and learned Lord, Lord Wilberforce, who suggested that there may indeed be cases which are too difficult and where the evidence is too complicated to be satisfactorily tried by jury. I noted his suggestion that there may be cases in which a judge with an expert assessor would be more appropriate. As the noble and learned Lord said, that certainly goes wider than what was considered by the Royal Commission, but I am sure that your Lordships noted that very interesting observation.
There was considerable agreement that pre-trial procedures could be streamlined. But there was a notable amount of disagreement among your Lordships on the matter of a right to trial by jury. I stress that that is a matter on which the Government have taken no decision as yet. There are clearly very strongly held views on both sides. We all heard the noble and learned Lord, Lord Taylor of Gosforth, refer to it as a right going back to Magna Carta. He spoke of it as part of the legal culture of England and Wales. I noticed how quickly the noble Lord, Lord McIntosh of Haringey, said that the Scottish position on this matter was quite simply wrong. I simply say that it shows the importance of the particular legal culture in which people operate. It is within that culture that any decision on the matter will have to be taken. It is a very important matter and one on which we shall need to reflect.
The matter of disclosure was also raised in a number of speeches. Disclosure by the prosecution was not touched on at great length, but clearly there are difficult issues involved and issues which are of great practical importance for making sure that trials are not unduly delayed, as the commission indicated. But in the speech of the noble Lord, Lord Benson, in connection particularly with serious fraud, we also heard about the disclosure of possible lines of defence. Other noble Lords pointed out that there may indeed be arguments for a wider use of disclosure of lines of defence. Certainly again that is something on which noble Lords will wish to reflect on future occasions.
With regard to the question of trial, the major issue discussed was the right of silence, as it was called. That 840 was perhaps the most controversial matter which arose during the course of today's debate. Let me say right away—and I hope to reassure the noble Viscount, Lord Runciman—that there is no proposal that it should be possible for somebody's guilt to be inferred simply on the basis of his failure to explain. On the contrary, what is proposed is that there must in all cases be a prima facie case presented from other material by the prosecution—a prima facie case; in other words, a case to answer.
The question then is whether or not the circumstances are such that the case calls for an explanation and whether or not the failure of the accused person to give the explanation points to there being no innocent explanation of the circumstances. That is the basic idea behind both the proposal and what is done in Northern Ireland at present.
The noble Lord, Lord Williams of Mostyn, and other noble Lords asked in what circumstances that would arise. As has been indicated, there are at least two basic circumstances. One can have failure to comment—for example, in the police station, before or after a solicitor comes; again, one can have failure by an accused person to give evidence at trial. In Northern Ireland both kinds of situation are covered.
The question—and this is the way that it is looked at in cases in Northern Ireland and the way it was approached by the Judicial Committee of this House in the case of Murray v The Director of Public Prosecutions—is what inference it is proper to draw using common sense and applying that common sense to all the circumstances of the situation as put before the court. It is obviously the case that the inference to be drawn will vary depending upon the particular circumstances. To take the most extreme example, it may be very difficult to draw an inference of guilt if somebody says, "I did not speak because I was told not to do so by my solicitor". The inference to be drawn from such a statement may be that the person was, for example, following the instructions of his solicitor. But the precise inference to be drawn is an inference which should be drawn as a matter of common sense in all the circumstances as they are before the court.
We heard from the noble and learned Lord, Lord Ackner, a cogent explanation of all the circumstances in which that position in the law has grown up. All that is being suggested is that judges should be able to say to a jury that they should use their common sense and draw whatever inference they can from the circumstances before them and from the failure of the accused person either to have commented at the time in the police station or to have given evidence in the case in the court.
§ Lord Hutchinson of Lullington
My Lords, perhaps the Minister will give way. Is he referring to jury trials or to trials conducted by judges in Ireland? Is he suggesting that juries should draw those inferences?
§ Lord Rodger of Earlsferry
My Lords, it is my understanding that in Northern Ireland the system applies both to the so-called "Diplock" courts and to jury trials. Whichever approach one chooses, they are basically the same. 841 This is a topic upon which it has been said strong views are held. It is asked what has changed since the matter has been considered by other bodies in the past. Some of the changes include the introduction of safeguards provided by PACE; the right of people to have a solicitor and, if they do not have one, in nearly all cases it is of their own choice. In particular there has been the introduction of tape recordings which will allow the jury to hear the circumstances in which the person failed to make any comment at the police station.
Those are significant changes which, in the Government's estimate, make it proper to take the step of changing the law to allow the judge to invite the jury, in appropriate cases, to draw an appropriate conclusion and inference from the failure of the accused person to comment on the accusation before him either at the police station or in the court.
Moving on to the appeal court and the review body, they are perhaps matters which have not been gone into in great detail by noble Lords, but which are clearly of great importance. They will need a great deal of working out. But once the review body comes into effect, it will help to provide a further long-stop which should go a long way to avoid a repetition of the kinds of case which have caused so much pain and misery in the past few years.
§ Lord Alexander of Weedon
My Lords, perhaps my noble and learned friend will give way. I thank him for his helpful remarks in regard to the review body. I understand, as do others, I suspect, that a detailed structure will take time to work out, as will the relationship with the Court of Appeal. But am I right in understanding from what my noble and learned friend said, that the Government now accept the principle that there should be an independent review body?
§ Lord Rodger of Earlsferry
My Lords, I am obliged to my noble friend. I am happy to confirm that the Government accept—and have already announced that they accept—the principle of such a review body. There is no question of the Government seeking to slide out of that or in any way to delay the matter. What is desired is to set the body up in a way which will be appropriate, having regard to the constitutional position both of itself and of the Court of Appeal. It will be necessary also to determine the criteria which the new body will apply when taking on cases.
842 Many other issues were raised—the training of the judiciary, plea-bargaining and so forth. But those and other issues will undoubtedly come before the House on another occasion. In the meantime I thank all noble Lords for their contributions. On this, as on other occasions, your Lordships' views will be considered by my right honourable friend the Home Secretary when he comes to take the decisions on the implementation of the report.
§ 7.45 p.m.
§ Lord Windlesham
My Lords, it only remains for me to thank the long list of speakers in the debate and to add my own congratulations to those which have already been expressed to the three maiden speakers. Each made a notable contribution on the basis of their own experience.
My noble and learned friend the Lord Advocate gave a full and detailed reply to the debate on behalf of the Government, for which we are grateful. He has shown a sure touch in finding his way around the intricacies of English criminal law and procedure. At one point I thought that he was going to give us only an elegant and skilful commentary on what had been said and the points raised. I waited until his closing remarks, in his reply to a well-placed question from my noble friend Lord Alexander of Weedon, for the undertaking which I believe we all expect at the end of a debate of this sort; that is, that he will bring to the Home Secretary and to those in the Home Office, who are at this moment formulating policies, the views expressed in this House.
This is not a seminar. It is not a conference on the report of the Royal Commission on Criminal Justice. It is a House of Parliament. The recommendations which require legislation will need to be debated arid approved in this House as well as in another place. I know from personal experience that it is not easy for a Minister who is not serving at the relevant department to reflect adequately the weight and thrust of opinion expressed in debates of this kind. But we count on my noble and learned friend Lord Rodger of Earlsferry to do that for us. I commend the Motion to the House.
§ On Question, Motion agreed to.
§ House adjourned at thirteen minutes before eight o'clock.