§ 5.15 p.m.
§ Second Reading debate resumed.
§ Baroness Mallalieu
My Lords, perhaps I may, first, join the noble and learned Lord, Lord Hailsham, in congratulating the noble and learned Lord, Lord Lowry, on his maiden speech. His wisdom and fairness have been admired for many years by those of us who have been fortunate enough to see him on rare occasions in the Judicial Committee of your Lordships' House. It is unfortunate that it has been 15 years before the full House has had the benefit of his experience. However, I hope that it will not be 15 years before the noble and learned Lord speaks again.
414 For 24 years, I have worked virtually daily within the criminal justice system, both prosecuting and defending as a member of the criminal Bar. I shall no doubt be corrected if I am wrong, but I believe that I am the only current, full-time, specialist criminal practitioner in your Lordships' House. I was in the Crown Court on Friday and I shall be there again tomorrow. Therefore, my experience, unlike that of many noble Lords who have held offices ranging from the highest positions of state to extensive experience in many areas of the criminal Bar and, indeed, the commercial Bar, is very much at the coal face of the criminal justice system.
Many areas of the vast Bill now before us need radical amendment in your Lordships' House. Secure training orders are just one aspect. I mention them only to pass on, because there are 45 speakers on the list and I hope to speak on the matter in due course at a later stage. Today, I should like to speak only about Part III of the Bill and in particular the proposals in relation to the right of silence. I believe that those proposals are a recipe for further miscarriages of justice. They are, above all others in the Bill, the proposals which cause me the gravest disquiet.
The present law is a delicate balance which has beer, honed over something like three centuries, ever since the privilege against self-incrimination was spelt out during the persecution of the Puritans during the reign of Charles I when the government made use of the Court of Star Chamber to attack their political opponents. The right of silence, as it exists today, has three fundamental justifications. First, it reflects the overriding principle of our criminal justice system which presumes innocence until guilt is proved. Secondly, it affords protection to the vulnerable; and, thirdly, it is simple. The words of the present caution and the defendant's position in law if he chooses not to speak are universally known and understood.
The proposed changes outlined by the Minister will create an effective inducement to answer police questions by shifting the burden on to the suspect. A new style caution will warn him of the consequences of his silence as a way of extracting an explanation. If he fails to give one, his silence may be used as positive evidence of guilt and may then be employed to demonstrate that his defence is untrue and his credibility undermined.
Not only are those provisions of doubtful legality so far as concerns European law—no doubt we shall hear more about that in Committee—but also discretionary comment by a judge of the kind envisaged is likely to have an adverse influence on the fairness of the proceedings and lead, in my view, to wrongful convictions for three main reasons. First, it can only encourage a jury to speculate on why the defendant has chosen to remain silent. Secondly, it renders the direction which the judge gives on the burden of proof a nonsense. With one breath he will be telling the jury that, from the defendant's silence, they may infer guilt, and then, in the next breath, he will be telling them that the burden of proving the case against the defendant rests on the prosecution. Thirdly, it will put pressure on a vulnerable suspect.
415 I have already heard, as indeed we all have, the noble Lord, Lord Wigoder, speak of vulnerable suspects, but I wonder how many of those who have not actually practised at the Criminal Bar and represented clients, largely on legal aid, have any idea of how high a proportion of those who are arrested, questioned and subsequently stand trial fall within that category. Vulnerable suspects may not be obviously physically or mentally unfit. They could be frightened, confused or inarticulate—indeed they usually are. They might give an inaccurate or a partial or a misleading or even a false account of events, possibly on occasions to protect a third person, although they are innocent of crime themselves.
Great public anxiety is prevalent about the level of crime and it is of course legitimate for the Government, in this Bill, and for the whole community to examine the criminal justice system to see if ways of improving it, which will reduce the level of crime, can be found. But the provision to which I refer will make no significant contribution to reducing crime or to convicting the guilty and carries with it a very real danger of convicting a number of the innocent as well. Improvements could be made. I daresay one would hear no moaning at the Bar if there were proposals that the defendant, once he knew the case against him, having received the statements from the prosecution and having had the benefit of legal advice, was required to disclose those issues which the defence would be likely to raise at trial. However, the Bill goes very much further than that. It is of the greatest significance that the Royal Commission on Criminal Justice, which examined this matter in such detail and with such care, by a majority of 9–2 recommended that the law in this respect remain unchanged.
We are in a very real danger, as a result of genuine public fears about crime and about guilty people escaping justice, of equating the accused with the criminal. They are not necessarily the same thing. We are constantly told that the emphasis should be upon the victim and not the criminal. I wholeheartedly agree that often the victims's feelings and sufferings seem to take second place and that that is wrong. But how does it help the victim if you convict the wrong person? All that does is create more victims. Political expediency has dictated these amendments but political expediency must never be allowed to undermine the fundamental principles of our system of justice. Nor must the discretion of a judge be allowed to replace an ancient right which affords protection to the innocent wrongly accused
. The Royal Commission was born not only of widespread public concern about the crime rate but also of concern about miscarriages of justice. Unhappily, I have experience of that, too, having represented someone who served a good part of a life sentence before being released by the Court of Appeal, plainly not guilty, and on another occasion of having represented someone who served a 12-year sentence before ultimately the truth emerged that he was in no way culpable.
416 The noble Earl says that such provisions have worked well in Northern Ireland, but largely, it seems, from what the noble and learned Lord, Lord Lowry, said, those were cases which did not involve juries. I am not aware that more defendants in Northern Ireland give evidence than did before, that more of those who do not give evidence are convicted, or that the provisions have had any effect at all in reducing the crime rate. The real risk, if these provisions are enacted, is that more innocent people may be convicted. And that risk is too great a risk to take.
The legal profession to which I belong is notoriously conservative but the Bar Council, the Criminal Bar Association and the Law Society are united in their disapproval of these proposals. I hope very much that the Government will think again as the Bill goes through this House. If they do not, unhappily, the noble Earl, and indeed the noble and learned Lord, Lord Hailsham, will not be with me when I sit in the cell with the next person who is convicted as a result of these changes, and it will be I who will have to explain the actions that this House has taken.
§ 5.25 p.m.
§ The Earl of Mar and Kellie
My Lords, I am grateful for the opportunity to address your Lordships' House for the first time, and I do so with considerable trepidation. I thank all those Members and officers of the House who have given me help and encouragement in the past few days. I wish to address the subject of the treatment of younger offenders and in particular to pose the question: what is the aim? There are many catch-phrases. Is it punishment, rehabilitation, reparation, short, sharp shock, social work, molly coddling, protection, victimisation, or what?
That is a question I have posed regularly to groups of young offenders aged between 16 and 21, at a Scottish young offenders' institution I visit very regularly as a member of the visiting committee. There is considerable confusion in their minds, and also in the minds of some of the young offenders' institution staff. When asked what is the purpose of the young offenders' institution, they will typically reply that it is punishment, to "keep us off the streets" or "to teach us a lesson". When asked, "How does the punishment work?", they will reply "It doesn't". When pressed the replies tend to be, "It scares you at first", "You make good intentions", and "You forget it all as soon as you are back home". Ultimately, the discussion is drawn to the subject of rehabilitation, personal change and giving up offending. It is established that personal change can only happen if the individual wants it; in other words, it must be with the individual's consent and, frankly, at the individual's own instigation. Other people can join in the process to enable and facilitate the change.
In view of the prison culture of "us and them" there is no obvious rush to discuss a future life-style with the staff. While the treatment of offenders is about examining the recent past, planning the future and enabling offenders to become ex-offenders, I have to recognise that such considerations are not the major 417 priority of the recently imprisoned young offender. Finding out how the system works and who to watch out for are the greater priorities in day-to-day prison life.
Prison and young offender institution staff are keenly aware that bullying puts far more fear in the lives of many young offenders and prisoners than anything the prison regime may impose. Speaking with young men on informal protection and hearing about their insecurities and fears about the hostile, dominating actions of other young offenders quickly brings me to the question, "Is that what the state intended"? I do not think so.
The decision to take away someone's liberty is taken for a number of reasons—punishment by loss of liberty, to draw vigorous attention to the offending behaviour, to vindicate the victim, to protect other potential victims, to raise the offender's awareness of his or her effect on victims, to arrange a period of self-reflection and to arrange an opportunity for negotiation with the prison staff of all grades and departments about the future. But that decision often misfires. The main result can be a state of considerable resentment and embitterment against the state, society and, ultimately, past and present victims.
So what is the answer? For those whose background is stable and structured, the proverb about going off the rails is appropriate. Those people know where they have gone wrong. A quick spell inside will nudge them firmly back onto tracks that they know. For the majority the issue is not so clear. Their lives are far more chaotic.
Around 1970 I was a social work student. I spent three weeks on the staff of a Scottish borstal where I caught up with the final days of staff recruited to the Scottish Borstal Service with a commitment to promoting change and after-care. A subsequent career in social work brought me into contact with the Scottish Prison Service and prisoners, as well as with probation orders, after care licences, community service orders and an intensive probation project.
Around 1980 I was a prison social worker in a Scottish prison. There I met an unhelpful "have nothing to do with the prisoners" attitude among some staff. That came as a considerable professional shock. Fortunately, subsequent contact with the Scottish Prison Service in the 1980s and 1990s proves that there has been a positive improvement in the official staff attitude towards prisoners. I wish to claim that the standards and attitudes of the old borstal service have at last pervaded prison staff thinking in the main.
I believe that the treatment of offenders is about talking with offenders about what they are doing to themselves and to others, their families and their victims, and encouraging the adoption of new attitudes. In a prison setting, that is not an obvious first step. The prison has to be run on a day-to-day basis. I acknowledge that for the staff it is a major achievement to lock up after a peaceful day the same number of prisoners as were unlocked in the morning. However, discussions about the future need to take place mainly informally, sometimes in more structured settings, and in group sessions. High quality, intelligent staff with much common sense are needed. The service conditions of the Scottish Prison Service are likely to attract 418 suitable staff. Proposals to employ private contractors raise questions about staff conditions and hence future quality of staff. Unless the prison regime includes the opportunity to discuss the future—obviously on a voluntary basis, for not all wish to do that—then a great opportunity has been missed.
When it comes to very young offenders, I am concerned on three counts. In the secure training orders, designed for England and Wales, there seems to be no flexibility in the length of imprisonment and hence less incentive to grasp the ideas being offered by the secure training centre staff. Secondly, I am unhappy about the concept of imprisonment rather than care for 12 to 14 year-olds, especially as the five centres might be a long way from home in most cases. Thirdly, and finally, removal from the community de-focuses the vital discussion about the need to find an acceptable lifestyle in the home community.
§ 5.34 p.m.
§ Viscount Runciman of Doxford
My Lords, it is a particular pleasure for me to congratulate, on behalf of everyone in the House, the noble Earl, Lord Mar and Kellie, on his maiden speech. Since it is not so long ago that I underwent the same experience, I speak with a great deal of fellow feeling. The topic on which he touched is not one on which I am about to address your Lordships, but I recognise that it is central to some of the most important provisions of the Bill. I am sure that I speak for us all when I say that we look forward to hearing further contributions from him, which I am sure will be equally valuable, before the Bill leaves the House.
When I last addressed your Lordships on this topic, I was a maiden speaker constrained by the convention which requires that I should avoid being controversial. I am not so constrained this afternoon; and I shall be outspokenly critical about the clauses in the Bill which bear on the so-called right of silence and the inferences which can be drawn from silence by an accused. However, I wish to emphasise that I make those remarks within the context of entire agreement on the objective in view: that all those defendants, and only those defendants, whose guilt is beyond reasonable doubt should be convicted in a criminal trial of the offence with which they have been charged.
I also wish to make clear that I welcome and recognise the extent to which Ministers have responded to some of the most important of the recommendations of the Royal Commission on Criminal Justice, notably the establishment of a new independent Criminal Cases Review Authority. Although Ministers have been criticised for the time that they have taken in coming forward with their response, I think that they were quite right to do so. These are important changes. It is important to consult. It is important to get the details right. But that, of course, merely highlights the haste and the lack of consultation with which the provisions in this Bill which I am about to criticise have come before your Lordships. They have come before your Lordships not only against the recommendation by a majority of nine to two of the recent Royal Commission, but against the unanimous recommendation of the 419 previous Royal Commission which dealt, as I believe most people thought at that time, definitively with the earlier arguments of the Criminal Law Revision Committee and, as noble Lords have just heard, against the advice of the Bar Council, the Criminal Law Bar Association and the Law Society.
We are told that Ministers intend to bring into operation in England and Wales the provisions of the Northern Ireland order which has been in force since 1988. But that is a very different jurisdiction, facing a different set of problems. It is a different set of problems from that which obtains in this jurisdiction and which that order was designed to address. In the so-called Diplock courts, the judge has to give a reasoned judgment from which there is an automatic right of appeal. That is a fundamental difference from what takes place and, as I understand it, will continue to take place in jury trials. As I understand it, there is no intention whatever on the part of Ministers to introduce Diplock courts into the jurisdiction in England and Wales. Therefore I ask your Lordships not to try to assess the effects of the Northern Ireland order which are, at best, ambiguous. I am confident in saying that although it may not be possible to show that the provisions have had an adverse effect, there is certainly no evidence which demonstrates that they have had a positive effect either on the detection or the conviction rates for terrorist offences; and it is terrorist offences which that order was brought in to deal with.
Your Lordships need to consider what will be the effects of introducing those provisions into the existing criminal justice system of England and Wales. There will be two effects. I predict what they will be with a confidence based not merely on the extensive deliberation within the Royal Commission on these matters, but on discussions which I have had since the provisions of the Bill were made public with a wide range of practitioners: criminal solicitors; practising members of the Bar who both prosecute and defend; and serving members of the judiciary who try crime.
The first effect which will inevitably follow from the provisions as they stand is that there will be a significantly increased risk of wrongful convictions. The measures do not merely conflict with, but seek to put into reverse the main thrust of the Police and Criminal Evidence Act which was introduced on the basis of the recommendations of the last Royal Commission. Despite the initial misgivings of a certain number of experienced police officers, that Act, once it had been in force for several years, was welcomed by all the senior police officers who gave evidence to us in the Royal Commission. They welcomed it not only because it improved protection for the suspect, but because it diminished the risk that the honest police officer's evidence would be wrongly discredited. It brings the formal interview into the police station where that interview can be recorded on tape and where the suspect has ample opportunity to ask for and obtain legal advice. If there is a criticism to be made, it is that the opportunity is not as effective in practice as it ought to be.
420 I recognise that there has been a major improvement in the professionalism with which police officers conduct their duties, and in particular interviewing officers in the police station, since the time of the last Royal Commission. From what we have heard as regards the latest Royal Commission, I am satisfied that the police are entitled to claim that they have made and are still making well directed efforts in that direction. But if any noble Lords think that the problem of police malpractice has been altogether eliminated, I have to say to them that they are not living in the real world.
These measures will significantly expose frightened, vulnerable, inadequate and confused suspects to—it may not even be deliberate malpractice—undue and improper pressures which will risk wrongful convictions of the kind that still go on in a minority of cases, even now that the provisions of the Police and Criminal Evidence Act have been in force for many years. Such cases exist, they are very disturbing indeed and it is still more disturbing that we should be confronting the possibility of measures which will increase the number yet further.
The other consequence of the measures is that what will happen, or perhaps I should say what will not happen, is that although the time and therefore the cost of criminal trials will be significantly extended, that will not achieve a higher rate of convictions of the experienced or, if you like, professional criminals who would not be convicted on the strength of the evidence in any case. The reason is that they will continue to remain silent and will be advised by their solicitors to remain silent. Incidentally, that is exactly what has happened in Scotland—as we on the Royal Commission discovered—where there is a moral to be drawn which is much more directly relevant than any moral which could be drawn from Northern Ireland. What is more, their counsel in defending such criminals, will have a field day with legal argument over the reasonableness of the inferences which the prosecution will seek to draw.
When it comes to the judge's summing up, judges will be, as they will have to be, scrupulous—unless they want to be taken straight to the Court of Appeal—in conveying to the jury that silence in and of itself must not be taken as proof of guilt.
There are some estimates—I have not gone into them in detail and therefore cannot vouch for them—as to what the additional annual expense will be in terms of time and cost of criminal trials, to little or, I think, no effect. The lowest such estimate which I have seen is £36 million per annum; the highest is in the region of £60 million per annum.
I well understand the reasons for which the Association of Chief Police Officers and the Police Federation have come out strongly in support of the measures. I have great sympathy with the honest police officer who is confronted with a "no comment" interview—that, of course, is putting it politely—when he has confronted some difficult, dangerous and unpleasant people with strong prima facie evidence that they have committed a serious offence. But I have to say that I do not believe that the police who advocate these measures have fully thought through their consequences. That is what must concern us before the Bill leaves 421 the House. The officers will still receive a refusal to answer questions from the experienced professional criminals. Not only will those criminals receive that advice from their solicitors, but their solicitors will be prepared, if necessary, to waive legal privilege so that the jury will know the defendant was advised to say nothing, despite the revised caution and what goes with it.
The next thing that will happen is that police officers will get more—indeed, a lot more—of precisely the kind of cross-examination by defence counsel which they understandably resent. Defence counsel will run police witnesses uphill and down and then back up again in order to attempt to discredit their evidence in the minds of the jury. They will have ample scope for doing so because of the extent to which the measures reverse the whole thrust of PACE and re-open all the contentious questions which will now arise if the provisions go through about the allegations of so-called car seat confessions on the scenic route and allegations of inducements which were improperly or will be said to have been improperly put to the suspect by the police officer. By the time the case is before the jury, it will turn out that if the prima facie case is not strong enough, refusal to answer questions will not clinch it. If the prima facie evidence is good, a conviction will be obtained despite the defendant's silence.
Let me emphasise that it is not as though no change were necessary; a change is necessary, but not this one. The necessary change is that proposed in the report of the Royal Commission. If I may, I shall read out to your Lordships Recommendation No. 83 which is made by a majority of 10 to 1, and it reads as follows:it is when but only when the prosecution case has been fully disclosed that defendants should be required to offer an answer to the charges made against them at the risk of adverse comment at trial on any new defence they then disclose or any departure from the defence which they previously disclosed".That recommendation, if implemented, will have three great merits. It will remove the obligation of disclosure, so far as it goes, away from the police station with all the attendant risks. That obligation will be deferred until the defendant has had ample opportunity to obtain legal advice and knows exactly what it is that the Crown is alleging against him or her. The recommendation will also deal with the real problem about which the police are quite right to be concerned of the so-called "ambush" defence; that is, a totally spurious and fabricated defence which is held back until the very last moment, with the deliberate intention of wrong-footing the prosecution and misleading the jury. It is not a precise term; on a broad definition such as the police are naturally inclined to apply, there may be as many as one in five cases. I am talking about 100,000 cases tried before a jury in any year where the defence could be plausibly labelled an ambush. On the most conservative estimate, there is one in 10. It is a real problem, it needs to be addressed and the Royal Commission's recommendation addresses it directly.
Finally, under the regime which the Royal Commission proposed, the defendant can stay silent. There is, on any possible argument, no threat to the burden and standard of proof, no risk of a humiliating reversal in the European Court, if that risk needs to be 422 taken seriously. I am not competent to offer an opinion about that. However, what will happen is that if the defendant has refused the opportunity to disclose the defence on pain of adverse comment, as proposed, then at the end of the day the existing direction which I am about to read to the House—a specimen direction which has been drafted by the Judicial Studies Board—will amply cover the case. Under that or some equivalent direction the jury will be told that the defendant's silence, although not in itself to be taken as proof of guilt,means that there is no evidence from the defendant to undermine, contradict, or explain the evidence put before you by the prosecution".That is right. It is the position that ought to be maintained. I urge the Government, with whatever authority I can command on the basis of having chaired the recent Royal Commission: take back these clauses and reconsider them; and instead, implement Recommendation No. 83 of the Royal Commission.
§ 5.50 p.m.
§ Lord Rawlinson of Ewell
My Lords, the noble Viscount spoke with distinction and authority of his recent experience as the very distinguished chairman of the Royal Commission. The noble Baroness, Lady Mallalieu, spoke with the authority of coming, as she said, hot from the coalface—straight from practising in the courts. My authority is more ancient. It is based on 40 years of practice. In my early years I spent a lot of time in the criminal courts defending, often in capital murder cases. It was only after I became a law officer and leader of the circuit that I did prosecutions. Perhaps I may say in parenthesis here, since it is one of my hobby-horses, that a sad characteristic of the offices of Attorney-General and Solicitor-General is that conditions are so altered, the demand has become so great, that they are now rarely in court and are sucked deeper and deeper into the maw of Whitehall. It has removed them almost wholly from the courts. I was glad to see the Solicitor-General prosecuting at the end of last year.
Compared with the days when I had experience of defending, the change now is enormous—not in any procedure of the courts but in the sheer number of crimes that are committed and cases that have to be tried. That change is illustrated by the fact that when I practised at the Central Criminal Court there were four judges. Now, as the noble Baroness, Lady Mallalieu, will know, there are 20 or more. At that time judges had long holidays. Now, I believe, they sit continuously. The jurors used to be told: "There is no need to retire. If the front row will turn to the back row, perhaps you will be able to reach a verdict". The word of a police officer was invariably accepted. I was once insulted, indeed almost assaulted, at a London club because in a murder case that had received great publicity I had attacked the veracity of the police officer in charge of the case. Such was the ethos of those times. It is very, very different now. Of course it led some police officers to exaggeration, then to invention, in order to obtain convictions—with terrible consequences not only for individuals but for the law and so for the whole of society.
423 Perhaps I may trouble noble Lords with the experience that I had for many years in the early 1960s, at the time of Rab Butler onwards, when I was often the front-bench speaker at party conferences, resisting demands from the so-called hangers and floggers who used to appear regularly at party conferences. I used to have to speak in opposition from the front bench. In Parliament, I took part in debate after debate on criminal procedure and penal policy.
All the time criminal statistics mounted. In 1991 the British Crime Survey showed that there had been 15 million crimes. There was some relief, I believe, in the last year, but not in crimes of violence, rapes or robbery.
It is clear that what has been said and done has not even contained the problem let alone got on top of it. The record is one of failure. All who have played any part in public life, all who have been in government, and all those academics who have lectured, written and held seminars must take responsibility. The policy has failed. It has not got over the problem of the increase in crime year by year. It is common to all Western society and is now exported to the East, where people have to face the Scylla of tyranny or the Charybdis of drugs, gangs and crime. Some excuse the situation by saying that it results from people being deprived and disadvantaged. But in my youth, when there was greater hardship and greater deprivation, there was less crime.
The problem goes deeper. I agree with my noble and learned friend Lord Hailsham—and I have to include Mr. Wilson, whom he quoted—that it is the result of something inherent in our society. There is less deference to authority. Perhaps that is not such a bad thing. But there is also less kindness to the old and the weak. Society is so much more brutal; it is coarser and crueller. We see the viciousness that is demonstrated by a small percentage of people within our society who are responsible for crime.
The problem certainly cannot be cured by altering the procedure in the criminal courts. No one pretends that it can. It was a privilege to hear the noble and learned Lord, Lord Lowry, whose courage and integrity I witnessed at first hand. When he called me to the Bar of Northern Ireland, there was a thumping of explosions going on in the streets outside.
Who would be a judge nowadays? If you sentence a person to prison, the libertarians and experts get up and tell you that prison corrupts and that too many people are sent to prison in the United Kingdom. If, as a judge, you do not sentence a person to prison you are pilloried by the press for allowing criminals literally to get away with murder. Judges are blamed because some of them and some juries have accepted what appeared to be expert testimony from a reputable scientist and the evidence of apparently honest, respectable witnesses. How do you blame the judges and the juries who believed those witnesses when that evidence was tendered to them? Other people are to blame—you can certainly blame others—but not the judges. From time to time, indeed from time immemorial, courts have been, and will always be, deceived by plausible liars and faulty experts, with terrible consequences for everybody.
424 Our duty in Parliament is to provide a system of criminal justice which strikes a proper balance. That is the key, is it not?—the proper balance between the public interest that is involved in the acquitting of those who are not proven guilty (the predominant consideration) but also in convicting the guilty. Failure to convict can arouse citizens to take the law into their own hands. The conviction of the guilty is very important in the public interest.
It seems to me that this Bill makes several important and welcome changes based, as the noble and learned Lord, Lord Lowry, pointed out, on common sense. It introduces new powers to deal with children and young offenders. I say with great respect—and I listened with great pleasure, so well spoken, thought out and presented was the maiden speech of the noble Earl on the Benches opposite—that if a court is impotent to deal with the kind of cases that the noble Earl, Lord Ferrers, and the noble and learned Lord, Lord Hailsham, illustrated, it is a nonsense. It is asking for trouble. One has to deal with them somehow. Therefore it seems to me common sense that this Bill has introduced measures which can deal more appropriately and sensibly with those young offenders.
I turn to the question of bail. As parliamentarians we have permitted those who are on bail to sit on juries. This Bill takes that right away. Let us just think about it. We let that happen. Then we say: "There is a terrible amount of crime. Whose responsibility is it? It's somebody else's. It's the responsibility of the judges, or the Home Secretary". It is our responsibility; we let it happen.
In this Bill there is the creation, rightly, of a new offence of intimidating juries and witnesses. That is something more modern which happened after my time. Perhaps it was happening in the time of some noble Lords opposite. Apparently it is quite common now at the Central Criminal Court and certainly in large cities.
There are demands by the public for better control of public order in respect of travellers, ravers, squatters and those interfering with lawful activities, and demands for stop and search powers. Are they not common sense powers? Ought they not to be provided for the protection of ordinary citizens?.
Finally, I come to the great matter of what has been called the right of silence. It is not, certainly so far as I am concerned, a matter of political expediency. I read with interest and care the representations of the Bar Council, whose chairman I had the honour to be 19 years ago. It is forthright against any change, although it has some alternatives which may be well worth later consideration. Those are former colleagues whose judgment I greatly respect. I must confess that more than with any judge, more than with any Minister and more than with some colleagues on these Benches, I am in sympathy with my former colleagues of the Bar Council. I am sad to differ from them, but I do differ.
I anticipate that old friends like the noble Lord, Lord Hutchinson, the noble Lord, Lord Alexander of Weedon, my successor as Chairman of the Bar Council, and the noble Lord, Lord Williams of Mostyn, will disagree with me and express that disagreement. Lord Melbourne once said about a proposal in some Bill: 425 "All the clever fellows were for it and all the damned fools were against it. And, egad, the damned fools were right". In this matter I put myself among the damned fools. I pray in aid the fact that there was a minority about the right to silence in the Royal Commission. There were two. We are all the damned fools.
I have never understood how in modern times it is reasonable for a judge or an advocate not to be allowed to comment on the lack of explanation. I cannot see why a judge or an advocate should be banned from commenting on the fact that the person best able to help the jury in explaining his or her presence at a certain place or his possession of substances or instruments chooses to stay silent. Why cannot they comment about that? I am usually in total agreement with and have much respect for the views of the noble Lord, Lord Wigoder, a former colleague in my profession. He talked about the trauma of arrest and questioning. So be it—but surely it is a different matter later.
To many observers, the rule in modern times seems almost absurd. To the casual person it is absurd that a court cannot comment or a jury raise an inference when a person declines to answer or provide explanation. There may be an explanation for an earlier refusal to answer. If there is, so be it. Let it be given.
It is said that some 6 to 10 per cent. of all suspects outside the metropolitan area and 14 to 16 per cent. inside the metropolitan area refuse to explain. I suggest that they may be the most sophisticated and experienced criminals, not the weak and the vulnerable. Those who know the ropes know how to take advantage of the system. English criminal trials have often been criticised as being too much like a game. Here is a rule of the game which surely is no longer reasonable. It is about time that it was changed.
I accept that it will call for vigorous supervision of methods of questioning, as well as tape recording and control by superiors to ensure that there is no oppressive or threatening questioning. It will require a new form of caution. But it might perhaps have the following effect. Some of the police of whom the noble Viscount spoke might have had a perception that there was an imbalance in the criminal justice procedure system which tempted them and led them to exaggerate and invent. That is no excuse but it may be a reason. That imbalance may be a reason for them thinking in that way. Perhaps now they will see that there is no reason to perceive the situation as they did. There never has been any excuse, but now they will see that there is no reason.
I shall listen with great care to what I forecast will be most interesting debates on these clauses. I believe that this is a rightful trend. The Government are right to have so acted and they are right to have introduced the other measures in this Bill which I believe, properly and fairly applied, will help judges and citizens who sit on juries in the administration of criminal justice.
§ 6.5 p.m.
§ Lord Williams of Mostyn
My Lords, like the noble and learned Lord who has just sat down, I also am a member of the Bar of Northern Ireland. I was admitted by the successor of the noble and learned Lord, Lord Lowry. Therefore, on a personal basis perhaps I may say 426 that the response of your Lordships' House to the maiden speech of the noble and learned Lord, Lord Lowry, was an entirely accurate reflection of the affectionate regard in which he is held and the deep respect which he has engendered in Northern Ireland and elsewhere.
I wrote down the words of the noble Earl, Lord Ferrers, that "protecting the public from crime is an essential responsibility of government". I entirely agree. If that is a criterion, for the past few years there has been no overwhelming success. I agree entirely with the noble and learned Lord, Lord Hailsham, that the criminal justice system is simply a part, a mechanism, which cannot solve the causes of crime nor protect society from criminals. To that extent we are only partially dealing with an aspect of the social mechanism. I suggest that we should ponder on why the Bill was introduced in the first place. In substantial part it was seen as a necessary and inevitable consequence of the great work done by the noble Viscount, Lord Runciman, and his commission, which was properly described as a master work.
The commission itself was set up entirely because of a series of gross miscarriages of justice. What was the effect of those miscarriages? In some cases it left the innocent in prison for years. I suppose that that is the most cruel act that a state can inflict upon its citizens. Of equal importance, if not greater, in those cases it left the guilty undetected and unpunished. It caused endless continuing distress to victims and their relatives, as we saw last week. Their grief, distress and bereavement were reinvigorated when time should have begun its healing process, in part at least. It is in that context and, in particular, the overarching comment that those miscarriages infected the whole system that we need to attend to the detail of this Bill in due time.
A short time ago we had a debate when the noble Lord, Lord Clark, and the noble Lord, Lord Boardman, among other noble Lords were present. They criticised vigorously the inquisitorial aspects of Department of Trade investigations. Their criticism, which I regard in part at least as valid, was that such an inquisition was unfair. The important point that underlies the informed voice of reason of the noble Viscount, Lord Runciman, is that we do not live in an authoritarian country nor ought we to slide into such a state. We once had an inquisition in this country. It was centuries ago. We did not care for it. As my noble friend Lady Mallalieu said, the Star Chamber was not to our modern taste, and a monarch lost his head because of it.
We do not wish to live in an authoritarian country. Our tradition is not that of mainland Europe where the state is overweaning in its power. It may be helpful to study the composition of the Royal Commission. It was not made up of those born yesterday. There was a Permanent Secretary from the Northern Ireland Office; there was a former senior police officer—people I respectfully suggest who knew something of what they were doing.
It is not a question, as mistakenly suggested, of whether or not an accused person (presumed to be innocent in our system) can always remain silent. The noble Viscount, Lord Runciman, read out a model.
427 direction. For those who have not imposed upon themselves the disagreeable duty of reading his recommendations at the back of the report, he read out what I suggest is the perfectly reasonable compromise that when the prosecution case is known, when the defendant has legal advice, and when he has had the opportunity to reflect, it is not unreasonable to expect him to set up the basis of his case. Some noble Lords will know that my response to that recommendation is that it is entirely reasonable. It casts an acceptable balance between state oppression and the rights of the individual.
It needs to be remembered that the state prosecution system in this country is extremely powerful. It possesses resources, personnel and access to expert material which defendants, limping along with a solicitor and counsel on legal aid, often do not. If the right of silence in the police station is done away with, it will be a significant attack upon the quality and nature of the social life of this country, which is infinitely more subtle and delicate than those who pretend otherwise would have us believe.
Other questions arise such as those relating to secure training centres. We are here considering the incarceration of children. Again, I agree with the noble and learned Lord, Lord Hailsham, that there are limited circumstances where children may need to be incarcerated. But let us not forget what we are doing. We are speaking of children of 12. Where are the centres to be located? A significant reason why children commit crime is because they lack the benefits that most of us here have had. When one sends a child of 12 or 13 to a secure training institution 200 miles from where he normally lives, at a stroke one has set up a criminal for further criminal life. He is deprived of home, community and society—the benefits that we had and he lacked.
How is a parent on income support 200 miles away to maintain any contact with the child? It is not a simple remedy. Three examples were given; one by the noble and learned Lord, Lord Hailsham, and two by the noble Earl, Lord Ferrers. Of course they are headline examples. That is a problem. But we must remember that we are living in 1994 and not 1894. Even in 1894 some questions would have been raised regarding these draconian remedies for young children. In my judgment and experience they are necessary in only a small number of cases. The cost is enormous.
There are other matters on which I shall touch briefly, if I may, contained in that masterly report. Interesting questions arise in relation to the training of the judiciary and the expansion of the role of the Judicial Studies Board. It is extremely important. It is grossly under-resourced and underfunded. Enormous work was done by the former chairman Lord Justice Farquharson and is now being done by the present chairman Lord Justice Henry. They want another £1 million or £2 million per year to train judges to monitor judicial performance and to carry out the more efficient organisation of the judiciary. That needs to be compared 428 with the sums mentioned by the noble Viscount, Lord Runciman, in regard to the waste that will come about if the proposals are rushed through.
Other questions arise. Again, it may be that the noble and learned Lord, Lord Hailsham, will agree with me that bail should be a judicial decision based on judicial discretion. I am grateful to see the noble and learned Lord nodding. In some circumstances in the Bill that discretion is done away with. If someone has been convicted of a specific type of offence, he will be automatically refused bail by statute. That cannot be right. It is for judges to take away the liberty of people in this country, albeit with guidelines set out by the legislature, and not for the diktat of an Act of Parliament.
Those are fairly random thoughts with which I have taken up 10 minutes of your Lordships' time, for which I apologise. I suggest that in due time the question will be whether we can derive, see or describe a reasoned approach to the problems which underly and inform the Bill or whether it is better described in many ways as rather a rag-bag, lacking coherence, informed research or valid underpinning. I regret to say that if the words of the noble Viscount, Lord Runciman, particularly on the right of silence, are ignored or spurned, the conclusion must be that what has informed this Bill will be something less worthy than should inform it.
§ 6.16 p.m.
§ Lord Hutchinson of Lullington
My Lords, I regret that I too shall concentrate on Clauses 33 to 35 and I must start by apologising that, for reasons which may be apparent, I am not sure that I shall be able to sustain my presence to the end of this marathon debate.
After the remarkable speech of my noble friend Lady Mallalieu and that of the noble Viscount, Lord Runciman, it is difficult to feel that there is anything else to be said, particularly from an old volcano such as myself who has spent a professional lifetime in the criminal law and whose embers were almost dormant until, on seeing the clauses in the Bill, they were again fanned into the fire of protestation.
At the Second Reading of the Police and Magistrates' Courts Bill a number of noble Lords of distinction in all parts of the House expressed their profound concern at the constitutional implication of eroding the independence of chief constables, magistrates and their clerks. I hope that there will be similar cross-party concern during the passage of this Bill for the basic constitutional rights, not of the powerful but of the ordinary citizen—rights which these clauses seriously undermine if not destroy.
Let us be clear straight away. The clauses do not limit, adjust or amend; they abolish the right of silence. They shift the onus of proof, introduce an inquisitorial element into and change the whole ethos of the English criminal law. The right of silence is not the right not to be tortured and racked into speech; it is the right of the citizen, when accused of any crime, to decline to answer the accusation until he freely wishes to do so without suffering any adverse consequence. As the Runciman Commission put it, it is the prohibition against adverse 429 comment. That is the right of silence as it was addressed in depth and length by both Royal Commissions and which both said should be respected and maintained.
For the Secretary of State and the noble Earl to claim that the citizen still has the right to be silent—which is not the right of silence—and that he will not be penalised for being so, that the prosecution still has to prove its case and that therefore these clauses merely get rid of some archaic rule of evidence is, if I may say so, sophistry. It is misleading and it cheapens debate, as anyone can see who looks at the proceedings over the Bill in another place. It is to use the oldest forensic trick: if you seek a revolutionary change dress it up as an insignificant procedural alteration.
Under the Bill—let us face what it says—silence when confronted by an official at any time and anywhere can provide evidence of guilt. Not to offer oneself in court for cross-examination, to refuse to take up the Prayer Book to be sworn, to choose not to testify, can provide evidence of guilt. Once forced into the witness box, failure to answer any question put by prosecutor, judge or magistrate in any criminal court in this country can provide further evidence of guilt. So it is clear—an inquisitorial process is to be erected across the criminal spectrum. The common law rights of the individual are swept away and the citizen is deprived of his only ultimate constitutional safeguard against oppression or malpractice, which is the right to say, "No. I will not be bullied, threatened, pressurised or coerced. If you have a case, prove it. I say nothing until I choose to do so". That is the same right as any other citizen has in court to say, "I will not answer any question which might incriminate me", the privilege against self incrimination; or the same right, for instance, as any householder has when he shuts the door against any state official who wishes to come in unless armed with a warrant. Yet, as is said so glibly, any innocent person would gladly answer any question and no doubt welcome the police into his house, if he is innocent, for them to turn it over and search for stolen property. I say to the noble and learned Lord, Lord Rawlinson, that it is not the comment that matters. It is the inference of guilt that matters. That is the heart of the matter.
As we have already heard, these clauses ride roughshod over the reasoned recommendations of two Royal Commissions and—which has not been mentioned—of the Home Office's own working party and even the minority of two in the Runciman Commission. They have been condemned by every professional body whose members operate the criminal courts. They are, in sum, alien to our system of justice. When Lord Devlin read of these proposals in the now discredited 11th report in 1972, he said:They are as startling as if in a civil procedure the defendant, on receipt of a writ, was required to call at the office of the plaintiff's solicitors, tell them his defence to an undisclosed statement of claim and then submit to being questioned upon it".Because it has been claimed, even by some civil lawyers in this House, that the right of silence is no more than an archaic technicality, let me quote some authorities that cannot be gainsaid. The Phillips 430 Commission—there is no need to mention the Runciman Commission as we have heard of that from the noble Viscount himself—said:.The issue involved the balance between the interests of the community in bringing offenders to justice and the rights and liberties of persons suspected of crime".The commission made it clear that the 11th report entirely ignored this balance, and it rejected the proposals. It rightly recorded:The formidable body of lay and professional opinion that stood aghast at its proposals pointed to the fact that the right of silence formed a vital issue in the whole constitutional relationship in a free society between the individual and the state".It said that the right of silence derives from two factors: the onus of proof and the presumption of innocence; and, on the other side, freedom from self-incrimination. I quote again:If a subject has a right then he should be made aware of it, able to exercise it or waive it as he wishes".Historically, the caution has been the method of reminding the citizen of his common law right. It arose back in 1845,—not, as one noble and learned Lord told us the other day, from some aberration of the judges after the defendant was allowed to testify in 1898. When the role of justices changed from inquisitional to judicial, on committing art accused for trial a caution had to be given by them to the accused, telling him that he need not say anything—he had nothing to fear from threats or inducements but if he chose to speak it would be recorded and sent to the court of trial. It was of this situation that Bentham spoke. It had nothing to do with extra-judicial interrogation. When given the right to testify, the caution was soon incorporated into the judges' rules and only the other day it was incorporated again into PACE. Now, in this Bill, after 150 years, the caution apparently is simply to be a threat or art inducement to speak and no longer the proclamation of the suspect's rights at common law.
It was as long ago as 1820 that Lord Chancellor Eldon said:No man can be called on to incriminate himself by words or silence. It is one of the most sacred principles of the law".Lord Chief Justice Parker said in 1966:Every citizen has a moral or social duty to help the police but no legal duty: indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority".One is entitled to ask: does the common law no longer command respect in the higher judiciary?
In 1988 the Home Office working party, set up by Mr. Hurd to recommend not whether, but how, to introduce comment on a suspect's silence. reported to the Home Secretary:Not a single witness went so far as to suggest that silence could ever be proof of guilt. That would mean the burden of proof shifting and that we are completely opposed to".That advice is discarded by the Secretary of State. Is that arrogance, or is it that the senior lawyers in this administration have no experience of the criminal law in England and Wales, as we saw so clearly illustrated in the shambles of Matrix Churchill?
Finally, your Lordships may not know that Mr. Amlot is the last senior Treasury counsel at the Central Criminal Court. He is the most senior prosecutor in this country, with the duty of advising the Attorney General on matters of criminal law. As noble Lords may have 431 seen, he wrote to The Times condemning these clauses and powers which were being given to prosecutors to make it more easy for them to convict what Mr. Howard always calls "the criminals" whom they prosecute. Why should the chief prosecutor in this country, Mr. Amlot, take that view? Because it undermines the very basis of the law which he seeks daily to uphold. He will not stand by to see the defendants whom he prosecutes deprived of their constitutional rights. Are we in this House to ignore the chief prosecutor's views as well as those of the noble Viscount, Lord Runciman?.
All common law rules of evidence fetter the prosecution and the police and give what is called an "artifical protection" to the suspect. I say to the noble and learned Lord, Lord Hailsham, that, even where evidence is logically probative, we do not allow previous convictions, hearsay evidence, prejudicial evidence, the tapping of telephones, the bugging of rooms or the entering of homes. Each of these freedoms can be legislated away in special circumstances but each represents the citizen's rights, as does the presumption of innocence.
Apart from the basic principle of these clauses, the real mischief is that they provide the interrogator and the prosecutor with a new weapon—namely, the suspect's silence—for the application of pressure, and a power which is wide open to abuse. It is a power that our most senior prosecutor finds unacceptable and which removes the suspect's free choice. It seeks to legitimise a form of pressure and coercion against which, over the centuries, the common law has vigorously protected the citizen ever since the inquisitorial system of the 17th century was replaced.
I very much agree with the noble Viscount. These measures will take us straight back to the mischief of the old "sus" laws, to the disputes over police verbals, added to which there will now be the police non-verbals of not recording what defendants have said. It is a staggering irony that the Government's central response to the Runciman Commission, which was set up to ensure the ending of this terrible series of miscarriages of justice caused overwhelmingly by the making of false confessions, is to give the police the very power which the commission rejected as making more likely the conviction of the innocent. It is because false statements come from pressure and inducement that the common law has always demanded that all statements by defendants must be proved to be voluntary if they are to be admissible.
It is plain that the clauses follow the views of the minority in Runciman, but that is false because they would only allow comment with stringent statutory safeguards—that is to say, tape recordings, videos, the caution, legal representation, judicial ruling and warning to the jury. It is suggested that it is plain that the clauses are necessary to meet ambush defences made by hardened criminals who exploit the system. That is false because extensive research was done by both Royal Commissions. They both found no evidence to establish that criminals invoked the right of silence disproportionately to the mass of ordinary offenders or that silence led to any increased rate of acquittal.
432 I myself have dealt with hundreds of hardened criminals. I have yet to discover—and I always ask those who make the observation—what "exploitation" means. The innocent and the guilty are equally entitled to the same protection of the law. If offences are wrongly pinned, as they sometimes are, on men with long records or on members of the IRA, a conviction is still a disgraceful miscarriage of justice.
What is clear from the last devastating report of Justice, to which I am sure the noble Lord, Lord Alexander, will refer, is the extent to which the police, alas, exploit the gaps in PACE, causing Justice to declare that confession evidence is now so inherently unsafe that these clauses must simply not be allowed to stand as part of the Bill.
There was a day when the highest court in the land regarded the protection of individual freedom and the liberty of the subject as its overriding concern. It is rare today, I fear, to hear the words "human rights" in this Chamber. Let me end with the words of the last great criminal judge to sit on the Cross-Benches and whose voice most certainly would have been heard in this debate if he were still alive to speak. They are the words of Lord Devlin, speaking in a murder case where the defendant submitted that the prosecution had failed to discharge the burden of proof and who gave no evidence himself. Lord Devlin said:So great is and always has been our horror that a man might be questioned, forced to speak and perhaps condemn himself out of his own mouth, that we grant to everyone, suspected or accused of crime, at the beginning, at every stage and until the very end the right to say 'Ask me no question. I shall answer none. Prove your case'".As we know, in that case the defendant was acquitted. But, with these clauses, the judge would have had to say to the jury, "Maybe the prosecution is weak, but in the defendant's silence you can find the evidence of guilt of murder which they have found so difficult to prove". Of all the countries in the world which have the common law system, only Northern Ireland and Singapore have gone down this road. The Government ask us to join them. I ask this House: is that really what we here wish to see?.
§ 6.38 p.m.
§ The Lord Bishop of Lichfield
My Lords, I am a pastoral Bishop in a West Midlands diocese. I confess that after listening to this debate by leaders and those very experienced in the criminal justice system, I find myself bemused and unsure as to the line that I should follow. Nevertheless I believe I speak on behalf of both sides of this House in welcoming at one level the notes of realism which we have heard. We have had realism about the fact that crime is increasing; realism from the noble and learned Lord, Lord Hailsham, that only the expulsive power of a greater affection which is the vision of a human life, can supplant crime and is ultimately the answer. At the same time we have the realism which we heard from the noble and learned Lords, Lord Rawlinson and Lord Hailsham of the melancholy fact of the drop in the number of convictions of which we can be confident. We have 433 heard of the reality of evil. Several speakers have emphasised the need for practical actions to deal with the situation which this Bill is seeking to address.
However, I submit that because of the realism of the situation and the rise in crime, we must be all the more certain that the actions that we choose are the best possible and can be proven, in advance, to be effective. I have to say that after listening to the maiden speech of the noble Earl, Lord Mar and Kellie, and listening also to prison chaplains in my own diocese—in which we have more penal institutions than any other diocese of our Church—and to many people from parishes around the cathedral city where I live who regularly visit a young offenders' institution, I am in grave doubt, despite all the practical pressures, as to whether the introduction of expensive prisons to deal with a small minority of very difficult children in our society will be effective.
We know, I think, that it is out of line with a great deal of advice already given to the Government. Your Lordships will be hearing more from the Bishop on these Benches appointed to have a concern for prisons, the right reverend Prelate the Bishop of Lincoln, when the Bill goes into Committee. Further, having listened to distinguished legal authorities discussing the whole question of this ancient right to silence, I have to say that I am still very undecided in my own mind. We shall of course continue to listen carefully to both sides of this debate, especially to noble and learned Lords with long experience of the courts; but having listened to the noble Lord, Lord Hutchinson, to the noble Viscount, Lord Runciman, to the noble Lord, Lord Williams of Mostyn, and to the noble Baroness, Lady Mallalieu, I suggest to your Lordships that the burden of proof rests on those who are arguing for change in this matter. I submit that that proof has not yet been provided.
I should like now to touch on other clauses of the Bill, and in particular the proposals in relation to gypsies. I have to report to your Lordships that many people within the Churches are very uneasy with the Bill's proposals that affect gypsies and travellers, and particularly the proposal to repeal the duty on local authorities to provide sites for gypsies. The 1968 Act was, albeit slowly, making more public sites available. Without that, there is little chance of further public provision, and without preferential planning permission there is also little chance of private sites. It seems more likely that gypsies are to be forced to camp illegally, with all the consequences for public order which the Bill attempts to avoid.
The Bill seems to many experienced organisations to allow scope for harassment and discrimination. It may quickly criminalise many gypsies and will enable the police to seize their vehicles, which are also their homes, if they resist being moved on. I hope that your Lordships will look long and hard at these troubling possibilities.
Finally, there is the clause on the age of consent. Personally, I doubt whether it should be in the Bill but, since it is, your Lordships will expect to hear a view from these Benches. The main point, if I may say so, that Christians will want to make is that the public debate in the press and in another place has focused too 434 much on the question of age: the age of consent. That, with respect, is not the Church's focus. The Church has teaching about human sexuality and sexual relationships which applies to all ages. The kernel of our position here is that the Christian vision of human sexuality would stress that the greater the degree of personal intimacy, the greater should be the degree of personal commitment, the one to the other, of those involved. In the Christian view, the ideal context for intimate sexual relationships is the married love of man and wife. The criminal law therefore has a part, but only a limited part, to play in affirming and upholding a wider and richer humane moral vision. I was grateful to the noble and learned Lord, Lord Hailsham, for his quotations from Lewis's The Abolition of Man.
Parliament must make a prudential judgment about the age of consent in the light of its knowledge and understanding. From the evidence that we have heard from the police and those who know young people best, it is clear to me that there would be strong support from those who sit on the Bishops' Bench for the judgment that 18 strikes the right balance. It is not right to criminalise activity unnecessarily, but I do not find the argument for equality in this area as between heterosexual and homosexual practices convincing or in the public interest.
Many of these are very serious concerns and I hope it is not presumptuous to underline the danger of thinking that such things as the right to silence are simply clauses in any Bill. I am sure the Bill will benefit greatly from the very careful and independent-minded scrutiny it will receive in your Lordships' House.
§ 6.47 p.m.
§ Lord Windlesham
My Lords, when it is enacted, this Bill will be the fifth criminal justice Act since 1987. That compares with a period of 40 years from 1947 to 1987 which saw the passage of the previous five criminal justice Acts. There is an irony in that, while the frequency of legislation has increased so dramatically, so have the incidence and the severity of criminal offending.
The moral I draw is not that each of those measures failed. They may have been appropriate for the circumstances of the time and they may have had some of the effects that were intended, yet effects which were not intended may also have resulted. The moral which we should keep in our minds as we debate this enormous Bill is the limited extent to which legislation can control deviant behaviour which leads to crime.
When the Bill was first introduced it was already very long. It had 117 clauses and 10 schedules, and during its passage through the other place no fewer than 35 new clauses were added, 31 of them at the initiative of the Government. Some were added at relatively short notice and have not received a great deal of consideration so far. No doubt that is something that your Lordships can give attention to during the Committee stage.
Standing back from this mass of detail in which we shall shortly be submerged, what are likely to be the most far-reaching effects, intended or unintended, of this Bill? I should like to refer to two, in particular. The first is the increased use of custody and the second is the 435 burden and standard of proof in criminal trials. The provisions on secure training orders, which have been the subject of debate already this afternoon, and other custodial sentences for juvenile offenders, restrictions on the grant of bail, and increases in maximum penalties, will combine to make a larger prison population inevitable. Indeed, the punitive climate of public and media opinion has already pushed up the prison population by 12 per cent. in the year ended February of this year.
Despite the additional capacity which has already been authorised by the Government—that is, the construction of six new prisons and the provision of 2,000 extra places in extensions built onto existing prisons—prison overcrowding is once again looming in an ominous way. We should not forget that overcrowding threatens not just the standards which the noble and learned Lord, Lord Woolf, and others in the aftermath of his report, struggled so valiantly to improve; it contains the seeds of unrest and disorder which can erupt into violence and riot, sometimes ending in loss of life.
The lesson of Strangeways is that that riot took place in 1990 at a local prison, with a certified normal accommodation of 970 people. On the day that the riot erupted, there were 1,647 inmates (remand and convicted) in the prison.
Then there is the question of cost. Prisons are now the only open-ended and demand-led heading of public expenditure in which government policy is explicitly promoting higher expenditure. Virtually every other public service is subject to cash limits or other controls. Most informed observers believe that the crisis in the American penal system is caused by the ever-growing public demand for incarceration, without the provision of the necessary financial resources. We cannot afford to follow down that road.
The second issue is the one that has been the theme of the debate so far. It is the right of silence, or to put it more precisely, the inferences which may be drawn from a defendant's failure to answer questions or to give information in the circumstances defined in the Bill. It may be helpful to your Lordships to be reminded of the antecedents of these clauses. In 1988, following an upsurge of violent incidents in Northern Ireland, the law on the right to silence was modified substantially. It was modified by the Westminster Parliament, but because of the special procedures for handling Northern Ireland legislation, the changes were effected by statutory instrument and not by primary legislation. The resulting order (Criminal Evidence (Northern Ireland) Order 1988) applied generally to criminal proceedings in the Province and was not confined to alleged terrorist offences tried without a jury.
It is worth noting that two of the articles were taken almost verbatim, with some minor changes in the wording, from similar legislation which had been enacted for anti-terrorist purposes in the Republic of Ireland in 1984. That is the provenance of the order which is now translated into the Bill for general application in England and Wales. It is an example of 436 special powers, which are argued as necessary to meet special situations, becoming normalised and extended to a wider setting.
In his notable maiden speech, the noble and learned Lord, Lord Lowry, speaking with the authority of a former Lord Chief Justice of Northern Ireland, saw an advantage in bringing procedure in England and Wales into line with that of Northern Ireland so that the same rules applied throughout. He expressed some reservations on the wording of the relevant clauses of the Bill and, as I understood his speech, was speaking mainly about the exercise of the right of silence at trial rather than at the police station, at the scene of the crime, or sometimes in transit between the two. It is that aspect which is the particular concern of Justice and others.
To conclude, my feeling on this undoubtedly difficult and contentious issue is that we are approaching a turning point. The Government insist that the proposals will leave the underlying principles untouched. Those are that the defendant's guilt should be proved beyond all reasonable doubt; and that the burden of proof should lie on the prosecution. Of course, I accept that without reservation as a statement of intention. But, like the noble Viscount, Lord Runciman, I fear that it may not work out in that way.
If there is some evidence pointing towards the guilt of the accused but not enough to secure his conviction—a common situation; there may be forensic evidence, for instance, which is not sufficient on its own—the fact that the unwillingness of the accused to co-operate with the police in their inquiries (possibly acting on legal advice) may be used against him as an inference of guilt will have profound implications for the burden and standard of proof. The question which arises—I take it no further this afternoon —and which should be in our minds as we address this matter in Committee is: are we seeing the first steps towards a shift from the criminal standard of proof (beyond reasonable doubt) towards the civil standard (the balance of probability)? The answer to that question will probably not be answered until we have a sixth criminal justice Act, but I sense that we may be moving in that direction.
§ 7 p.m.
§ Baroness David
My Lords, I want to confine my remarks to Part I of the Bill, which deals with young offenders and the secure training order. It is to me quite incomprehensible that the Government should have embarked on this lunatic and misguided scheme which goes totally against their policies as expressed in recent Green and White Papers. I quote from Punishment, Custody and the Community.Most young offenders grow out of crime as they become mature and responsible. They need encouragement and help to become law abiding. Even a short period of custody is quite likely to confirm them as criminals, particularly as they acquire new criminal skills from more sophisticated offenders".Both the noble Lord, Lord Waddington, and Mr. Douglas Hurd, when Home Secretary, sought to keep children out of the penal system. The secure training order will reverse the trend of the last century. Not only that. Thirty organisations working with young offenders oppose the order —the Association of Directors of Social Services, the Association of Chief Probation 437 Officers, the Children's Society, the Law Society, the Prison Governors' Association and the Justices' Clerks Society, to name but a few. Even the very few organisations which have expressed support favour a very different type of order from that proposed by the Government. The Magistrates' Association stated that the majority of its branches supported a secure training order, although I believe its executive did not. But it emphasised that the order must be served in small, locally-based units. That is far from the Government's proposal. There are five secure training centres serving the whole of England and Wales where inevitably there will be minimum opportunities for families and the home social or probation worker to keep in touch. The noble and learned Lord, Lord Woolf, in his report,Custody, Care and Justicepublished in 1991, stressed the importance of this. Only the Government seem to ignore it.
The Government, by creating the orders, seem prepared to breach international law on the treatment of young offenders. They ratified the UN Convention on the Rights of the Child in 1991 and adopted the UN standard minimum rules for the administration of juvenile justice, called the Beijing Rules, in 1985. They are also subject to the European Convention on Human Rights, which allows individuals to take cases to the European Court. The principles contained in these charters are recognised and implemented by the civilised world and were increasingly forming part of the UK juvenile justice system. The Bill sets back that process by two decades and puts us in breach of our international commitments in at least two broad aspects. The first is custody as a last resort. Article 37 of the Convention on the Rights of the Child requires that,the imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time".The Beijing Rules provide:Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response. The well-being of the juvenile shall be the guiding factor in the consideration of his or her case".The Bill massively increases the powers of the court to lock up children. The new order for 12 to 14 year-olds is not even for "persistent offending" but for three imprisonable offences; it does not say if committed on one or more occasions. It could be for shoplifting at 11, 12 or 14. There could be a sentence of up to two years, one year of which could be spent in custody. That is twice the length of the custodial sentences which magistrates can impose on offenders of all ages from 15 upwards where they are limited to a maximum of six months for a single offence.
The Bill also doubles the maximum custodial sentence for 15 to 17 year-olds, lowers the age to 10 (from 14) for long-term custodial sentences for grave offences, empowers the court to remand 12 to 14 year-olds directly into secure accommodation and opens the provision of secure accommodation to the private sector. That was fought off when the Children Bill was going through this House. Not only can magistrates send children to detention for much longer at present, but, by a last minute amendment to the Bill with no prior 438 consultation, they will be able to do so without having an up-to-date report. That is wrong. We put that provision in a Bill only 18 months ago. Circumstances can change very rapidly with young people.
We have been given no hard evidence…only tabloid hysteria —that these powers are needed. The crime rate among juveniles has fallen by 37 per cent. since 1980. That point has been made but I think it is worth repeating. It can be related to demographic change. But the reduced use of custody, the increased use of cautioning and practitioner—led use of community schemes in the 1980s have had significant impact.
The Home Office commissioned the Policy Studies Institute to do some research, and this was published as Persistent Young Offenders. It revealed that locking up a small number of highly persistent young offenders would not make a substantial impact on juvenile crime by keeping them out of circulation during their sentences. Of its total sample of 531, 25 could have been eligible for the secure training order but they represented only 5 per cent. of the sample and their offences accounted for only 8 per cent. of the offences committed by the total sample. So the effect of these new and drastic measures can be seen to be practically nil. Crime will be very, very marginally reduced during the time spent in custody.
After custody, what happens then? All the evidence —and there is a great deal—goes to show that locking up young people, whether in prison, young offender institutions, approved schools or community homes with education, increased rather than decreased reconviction rates. The Home Office handbook, Sentence of the Court showed that 65 per cent. of first offenders and 78 per cent. of offenders with previous convictions, who were given approved school orders, were reconvicted within five years. When the characteristics of offenders were taken into account, those leaving approved schools had a reconviction rate, 45 per cent. higher than would otherwise have been expected from their characteristics and 7ecords.
The Lisnevin Training School in Northern Ireland, whose training school order is the nearest to what the Government propose to set up, has an abysmal record in this respect. The policy analysis branch there found a very bad reconviction rate. Its recent research (in 1993) found the reconviction rate of young people leaving the training school was over 85 per cent. I hope the Government pay heed to the research, in contrast to what they did about the Policy Studies Institute research, about which I have already spoken. The research was published in January 1994. But the Home Office, which had paid for it, published this Bill in December, before it had had time to study the research it had commissioned—not a very good way to spend money.
To return to the UN and European conventions—the inhuman and institutionalising treatment aspects—the UN convention provides in Article 9 that,children separated from their parents shall have direct contact with them on a regular basis".Article 40 provides that,child offenders shall be treated in a manner consistent with the promotion of the child's sense of dignity and worth [taking] into 439 account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in the community".In Rule 18 the Beijing Rules provide,that institutionalisation should be avoided to the greatest extent possible".In Article 3 the European convention,prohibits inhuman or degrading treatment".The proposed secure training centres are almost certain to breach these provisions. They will hold almost three times the 15 recommended by the Home Affairs Select Committee in 1993. The Minister, the noble Earl, Lord Ferrers, seemed to think the number too small but there is absolutely no evidence for that. The geographical dispersal of the centres will mean that some children are held more than 200 miles from their home. The age range will comprise children of barely 12 to those approaching 16. That will increase the risk of bullying. The private sector has no experience of treating young people and will seek to recoup its capital outlay by profits in some way, most likely by reducing staff costs. Ofsted has reportedly expressed doubts that the education at the centres will be adequate.
In Clause 9 the custody officer's job is described as:(a) to prevent their escape from lawful custody; (b) to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts; (c) to ensure good order and discipline on their part; and (d) to attend to their wellbeing".The emphasis is on punishment. The wellbeing of the children is the fourth and last duty. All references in the Bill are to the Prisons Acts and other criminal justice legislation, never to the Children Act 1989 whose prime concern was the needs and welfare of young people. I had hoped that the noble and learned Lord the Lord Chancellor would be here as he took such a full part and a great interest in the Children Bill when it was going through this House. He supported the thrust of the Bill, which was to make the welfare of the child paramount.
In the light of all the evidence and the substantial powers which courts currently have, I find it hard to believe that many noble Lords opposite can think that the secure training orders will reduce crime and bring back offenders from their offending to become decent and useful members of society, which many young offenders turn out to be. I find it hard to believe that many noble Lords opposite can be happy with legislation which may well lead to breaches of the UN and European conventions which this Government have signed, ratified and supported.
I ask the noble and learned Lord who will be replying to the debate to comment on those points in particular.
§ 7.12 p.m.
§ Lord Ackner
My Lords, some two years ago in the case of Regina v the Director of the Serious Fraud Office, the Appellate Committee had to consider the right of the director to interrogate pre-trial under the statute. The leading speech was given by my noble and learned friend Lord Mustill and he used this expression:The subject of the right of silence causes strong but unfocused feelings".I hope that I shall have a little time to refer to some of the omissions in the Bill but perhaps I might touch on 440 the right of silence since it has been so much referred to in the hope of perhaps sharpening the focus on that particular problem.
The first point that I make is that it is high time that we avoided confusion by referring to a right with which we are not concerned. We are not concerned with the right not to incriminate oneself. We are concerned here solely with whether there is to be conferred on the prosecution and the judge a right to make critical observations because the accused has remained silent. That is quite a different matter.
The second point that I wish to make is that it is not part of English law that a person cannot be convicted as a result of his silence. That rather dogmatic observation is not of my creation, although I agree with it. It was said by the late Lord Chief Justice Widgery in a debate in your Lordships' House in 1973 when the report of the Criminal Law Revision Committee was being considered. 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 very obvious examples. The first is that it is well settled law, and has been for very many years, that if a person is found in possession of recently stolen property and remains silent and gives no explanation, the jury—and it is so instructed by the judge to this effect—can infer that he is either the thief or was the receiver of that stolen property.
The late Lord Chief Justice gave another very obvious example of a father who hears that his daughter has been assaulted by a neighbour. He sees the neighbour in the street and remonstrates with him about the allegation and the neighbour remains totally silent in circumstances in which it would have been expected that he would defend himself. That is a perfectly permissible basis on which he can be convicted.
What has happened is that we have an artificial rule which has grown up historically: first, as a result of nearly 100 years ago, allowing the accused for the first time to give evidence. The reason why he was not allowed previously to give evidence, as I understand it, was that he ran the risk of prejudicing his immortal soul if he took the oath and then was guilty of perjury.
Having produced that momentous decision that an accused person should be allowed to give evidence, naturally there was anxiety about the comment which would be made if he did not take advantage of that facility. Therefore, that odd quirk of the law, which gives only the judge the right to make a comment, was introduced quite contrary to the ordinary judicial principles of the judge holding the balance between the prosecution and the defence. The judge was, so to speak, being drawn into the arena and was expected to make a comment which the prosecution could not make.
The other reason for the right was the judge's decision as to the nature of the caution which, as your Lordships know, says in terms that the accused is not under any obligation to say anything but if he does, it may be used in evidence. That invitation would be a trick if having accepted the invitation to remain silent, there was comment.
441 But in the self-same debate as the late Lord Widgery appeared, Lord Dilhorne pointed out that that caution was an historic anachronism which arose out of two contradictory rulings given by two judges on assize at Birmingham. That is the significance of that particular source.
The next point that I make is that the abolition of immunity from comment is not a novel suggestion thought up by a Home Secretary to pep up a rather old-fashioned jury speech to his party faithful. It has an extremely respectable genesis which should have a nostalgic flavour, certainly to my old friend the noble Lord, Lord Hutchinson of Lullington, the noble Lord, Lord Campbell of Alloway, and, indeed, the noble and learned Lord, Lord Rawlinson of Ewell, if he were present. On the western circuit there was a Silk called Norman Skelhorn, Q.C. who was of incomparable ability in defence. All of us who knew him well used to say that if we got into trouble, he was the person that we should immediately go to. He specialised in defence work.
In due course, in about 1963, he was made the Director of Public Prosecutions—Sir Norman Skelhorn. At a very early stage thereafter, he reached the same conclusion as the noble Viscount; namely, that the balance had shifted too much in favour of the defence. He produced a paper, which he read and to which I listened in Sydney, Australia in 1965 at the Commonwealth law conference on the right of silence, suggesting that it was archaic, unjustified and should be overhauled.
In that year or a year earlier, the Home Secretary had asked the Criminal Law Revision Committee whether it would investigate the criminal law of evidence to see to what extent it should be improved. The actual nature of the request was,to review the law of evidence in criminal cases and to consider whether any changes are desirable in the interests of the fair and efficient administration of justice; and in particular what provision should he made for modifying rules which have ceased to be appropriate in modern conditions".That was in 1964 or 1965. It was not until 1972 that the committee produced a voluminous report. That report set out the very recommendations which were embodied in a draft Bill annexed to it which has been the basis of the order made in Ireland.
Perhaps I may remind your Lordships of the personalities on that committee. Presided over by Lord Edmund-Davies, it had the following Court of Appeal judges on it: Lord Justice Sellers, Lord Justice Lawton and Lord Justice James. In addition, there was Mr. Justice Finnemore, who was a very experienced High Court judge and, indeed, Sir Kenneth Jones. There was also the second senior Judge at the Old Bailey, then Mr. Griffith-Jones and three professors; namely, Professor Cross, Professor Seaborne Davies and Professor Glanville Williams, and others including Sir Norman Skelhorn.
The report did not fare well in the debate which took place in your Lordships' House, basically for one simple reason. By and large, those who spoke said, "You cannot remove that immunity from comment unless you have suitable safeguards". Tapes were only just beginning to roll and the majority of the committee were 442 against their use, although the minority were in favour. The House said, "Until you have tapes that work and proper safeguards, we shall not back it". That is how it came to founder.
I turn now to the onus. The onus of proof will not be, altered by the proposals. What will happen is that it will be made easier to prove the case. It was made easier to do so as a result of the 1967 Criminal Justice Act which provided that if you are going to run an alibi you must give notice of it with details of where you were and when, together with the names and addresses of supporting witnesses. If you cannot do so, then you will not be allowed to produce that defence without the concurrence of the judge. The heavens did not fall in regard to that provision.
Perhaps I may give your Lordships an even more acute example: drink driving. I do not recall that there has been any suggestion that the European Court of Human Rights will castigate our law—and, no doubt, the law of most of Western Europe—which obliges a person who is stopped, in regard to whom there is reasonable suspicion that he has drunk too much, to provide a sample of his blood or urine. That is not taking away a comment on his silence; it is obliging him to produce evidence to incriminate himself. Similarly, the heavens have not fallen about that. Indeed, I believe that the general public think that it is a thoroughly sound idea. It has, however, taken much fun away from the Bar. In the old days, one had all kinds of comic tests that could be used. I see that the noble Lord, Lord Hutchinson, wishes to intervene. I give way.
§ Lord Hutchinson of Lullington
My Lords, I am much obliged. The noble and learned Lord said that the onus will not shift. However, can he explain to the House how it comes about that two Royal Commissions and the Home Office working party carne to the conclusion that that is exactly what would happen? That is why they were against it.
§ Lord Ackner
My Lords, the simple explanation is that they are wrong. I thought that I had made that point quite clear.
I move on now to the previous Royal Commission which reported in 1980. It did not have available to it six years of experience in Ireland; not limited to cases involving terrorists, for example, the Diplock cases, but to the ordinary jury case. Therefore, one cannot blame those concerned for not considering its validity. However, with very great respect, I blame the current Royal Commission. It took no evidence of any kind and carried out no investigation as to what was happening in Ireland. However, the provision did not sneak through. The Home Secretary said in terms in 1986 that it would be reproduced in England as soon as it was convenient. Yet, nothing emanated from Ireland. That is why I am sure that the House is intensely grateful to my noble and learned friend Lord Lowry for breaking his 15-year silence and coming here to give us the result of having discussed with his successor just how well it is working.
We are dealing with—and the point has not been clearly made—two entirely different categories.. The first category, and the one on which I place emphasis as did my noble and learned friend Lord Lowry, is the case 443 of the accused who has had the depositions from the prosecution months ahead of trial. He then attends trial with the benefit of solicitor and counsel and hears the cross-examination of the prosecution evidence by his counsel. On what basis should there be no comment on his silence? I rely on the very wise observations, as one would expect, from the former Law Lord, Lord Reid, who was one of the greatest judges of this century. When the issue was debated before him, having disowned any suggestion that there was such a thing as a right of silence in the sense that we are using, he said that the simple test is: are you being fair to the accused?
How is it being unfair to the accused who has had all that material, who has listened to the trial and who has heard the cross-examination of the evidence to say, "You are perfectly entitled to keep your seat in the dock if you are so minded. But unless you provide your explanation, it may be the subject of adverse comment"? I do not believe that Justice, which will be so well represented by the noble Lord, Lord Alexander, in any way suggests that that is an unfair situation now that the ritual about the invitation from the court has been removed through my noble and learned friend the Lord Chief Justice. I understood—although I may be quite wrong—that the Shadow Home Secretary, Mr. Blair, had no criticism of the in-court situation and that the noble and learned Lord, Lord Scarman, who is well-known for his liberal views, had nothing against it; nor, in my respectful submission, can there be anything against it.
The second category is quite different. I refer to the situation where the accused is being asked questions by the police. Again, I apply Lord Reid's approach; namely, are you being fair to the accused? I respectfully submit that you are not being fair to the accused, unless he has his lawyer present, is given an outline of what the police have got against him—if I may use the vernacular—and an outline of the type of questions that they want answered. If that is done and the questions are committed at least to a tape, but preferably to video, I submit, again, that you cannot be said to be unfair in any way.
If it is said—and this is my last point (there is no room for omissions so I shall have to reserve those)—that, "Ah, you are going to add to the costs". That will not be so. In fact, there will be many cases where defendants plead guilty instead of having long drawn-out fights. The legal profession will be re-educated not to ask the accused person, "Have you made any statement to the police?" and, when the answer is "No", respond with, "Thank heavens for that". There will be a different approach in which the adviser asks, "Have you yet put forward your defence?" On hearing the answer "No", the adviser will say, "Then we should lose no time about it". The reason is that the police have a duty to investigate and it is repugnant to common sense that that duty should be frustrated by archaic laws and practices. I do not in any way urge that we will have necessarily more successes in trials—I am not interested in that. I personally am 444 interested in having a sensible system which cannot be the mockery of the man in the street, as ours is in many respects.
§ 7.30 p.m.
§ Lord Campbell of Alloway
My Lords, I am very grateful to follow the noble and learned Lord, Lord Ackner, who always enlivens the proceedings in some way or another and sharpens the focus. The sharpened focus is really crucial. There is no general rule, as has been suggested over and over again, that a man cannot be convicted on his silence. There is no question of self-incrimination arising, as was suggested by a certain noble Lord. The test is fairness to the accused in the way which was explained by the noble and learned Lord, and that is a totally sufficient and satisfactory test.
It was nice to have—certainly for me—some Western Circuit reminiscences of when we were all very young and a reference to our friend Norman Skelhorn, who eventually was elevated to become Director of Public Prosecutions, but that tempts me to stray from my rather duller task in hand. I must move straight away—no Western Circuit stories—to the main area of contention; that is, the proposals in Clauses 32 to 35 to allow an adverse inference to be drawn when the right of silence has been exercised.
We are on Second Reading and on Second Reading we are concerned only with questions of principle. I shall try to direct myself to the principle and not to the drafting. Having heard the speeches of the noble and learned Lords, Lord Lowry, Lord Hailsham, Lord Rawlinson and Lord Ackner, with whom I respectfully—as we say in the trade—and truly agree, I am able to shorten my speech and seek to avoid repetition. But as the noble and learned Lord, Lord Lowry, said, we are concerned with a principle which he accepts, subject to the drafting. This principle has been accepted by the noble and learned Lord, who has had the experience of working the proposed regime, by a former Lord Chancellor, a former Attorney General and chairman of the Bar Council and, I think, a former Law Lord and former chairman, who have sharpened the focus. However, the principle has been accepted not only by them; it has also been accepted in principle by the Magistrates Association and also by the Police Federation.
As to the powerful and most interesting speech of the noble Viscount, Lord Runciman, in support of Recommendation 83 of the Royal Commission, which appeared to attract the support of my noble friend Lord Windlesham and assuredly attracted the support of the noble Lord, Lord Williams of Mostyn, the difficulty is that Recommendation 83 simply does not deal with what happens at the police station at all. I hope I may refer to the Bar Council's recommendation which adopts the report of the working group on the right of silence which refers to the caution at the police station. A person is cautioned thus:If you do not have anything to say, a record will be made of anything you do say and it may be given in evidence, so may your refusal to answer any questions. If there is any factor on which you intend to rely in your defence in court, it would be best to mention it now. If you hold it back until you go to court, you may be less likely to be believed".445 If that recommendation of the working group, supported by the Bar Council, is accepted, then Recommendation 83 espoused by the noble Lord, Lord Windlesham, would be otiose. I merely mention that in passing as a point of respectful argument.
At the outset I believe a certain noble Lord referred to the following matter. But the point must be made—perhaps it is another point of focus—that these proposed reforms, the rectitude of which is called in question, will assuredly neither increase nor reduce the risk of unsafe convictions on bent evidence with fake confessions. That is a matter of public importance and of general concern to be addressed by wholly other means, and indeed it must be addressed.
Today, and for some time in the past, the right of silence at the police station has been protected by the caution under the Judges' Rules. On trial by jury only the judge may comment on the exercise of such a right, but the permissible nature of such comment is governed by a series of case law decisions and no adverse inference may ever be drawn from the fact that an accused exercises his right of silence at a police station, or indeed in a court. The judges make that plain and the magistrates know their job. In the result, on occasions unwarranted advantages which defy all tenets of common sense are conferred upon an accused which inhibit the due administration of justice. But under this proposed regime—as I have said, acceptable to the Magistrates Association subject to guidance as to the implementation of the safeguards—an adverse inference may be drawn by the magistrates in the determination of guilt or as to whether there is a case to answer. On trial by jury the judge may take such adverse inference into account on a submission of no case to answer or by way of comment in his summing up, in which he would no doubt—I stress this—direct the jury that whether it drew the inference or not or took it into account or not in reaching its verdict was a matter of fact entirely for the jury. This is a matter of cardinal importance which does not seem to have been appreciated by one noble Lord—admittedly he was not a lawyer, and I forget who it was—who spoke in this debate.
If the accused refuses to give evidence under these proposed reforms or gives evidence but refuses to answer a question, whether the refusal was with or without cause so as to justify an adverse inference or a judicial comment would be dealt with in a similar manner. But there are safeguards and these are the safeguards on which the magistrates seek guidance as to implementation. As proposed by the Bar Council, counsel for the Crown and the defence would be entitled to call evidence and to make submissions to the magistrates and, in a jury trial, to the judge in the absence of the jury, as to whether any adverse inference should be drawn. Under the proposed regime, an essential and wholly sufficient safeguard for the protection of the innocent lies with the form of caution to which I have referred, with the integrity, patience and common sense of our lay magistrates who deal with about 95 per cent. of these cases, and with the judiciary.
On the burden of proof, I am prepared to grasp the nettle. I believe that one has to accept what some people call an adjustment. I have to accept that the drawing of 446 an adverse inference would have a qualifying effect on the burden of proof. However, that is the case with all forms of imposed disclosures where on noncompliance an adverse inference may be drawn.
I believe it was the noble and learned Lord, Lord Lowry, who had looked up some 24 statutory examples, one of them being, in another context, a refusal of a putative father to submit to a DNA test. It is not, understood on an objective examination how such qualifying effects as are proposed by these clauses should be open to any objection. Indeed, it has not yet been pointed out. But surely the concept of the proposals appears to marry with the spirit of Recommendations 132 to 138 of the Royal Commission report as to pre-trial defence disclosure, which also assuredly qualifies the burden of proof and has the, approval of the Lord Chief Justice and, it is understood, the majority of the profession. To allow an adverse inference to be drawn where the court is satisfied on the, evidence beyond all reasonable doubt that it is fair and reasonable as a matter of common sense that such inference should be drawn ought not to be open to objection as a matter of principle as a derogation from the burden of proof.
I propose to shorten my speech. I merely take up the point on Clause 33. The reservations of Justice in the document that I have seen, I believe, are unfounded. The judge must leave the drawing of the inference to the jury. Assuredly, if he does, no breach of the European Convention on Human Rights is involved. Any injustice would be cured in our domestic revisory procedure long before the matter could ever reach the European Court of Justice. The permissible nature of judicial comment has been considered in many decisions. The noble Viscount, Lord Runciman, did not appear to appreciate that, if any unfairness arises, the conviction is quashed on appeal and that the summing up of the judge is the subject matter of a revisory decision of the courts.
Let us take, for example, the summing up of Mr. Justice Devlin upon the night of silence which in effect secured the acquittal of Dr. Bodkin Adams. But as we at the Bar all know, it was not adopted as a precedent by the Court of Appeal. On the other hand, there is the celebrated summing up of Mr. Justice Swift—it assuredly would not be acceptable when directing a jury under Clause 33—saying, "Members of the jury, you don't know what happened. I don't know what happened. The only person who knows what happened has not come forward to tell you what happened". Such a direction would be unfair. It could not even be qualified by some addition saying, "And you must remember that you may not convict merely on the silence of the accused".
There is no injustice in the proposals. On the whole, the initiative is much to be commended as acceptable not only to those who fear crime but also to a somewhat bewildered section of society sometimes called, I believe, the silent majority.
§ 7.45 p.m.
§ Lord Henniker
My Lords, we are under half way through the number of speakers. It is my duty to speak as briefly as I can. I wish to make two points.
447 The noble Lord, Lord Wigoder, was kind enough to say that I had some experience relating to juvenile problems. I have. For many years I have been associated with a community home; and until 1990 I was chairman of the Intermediate Treatment Fund and president of the Rainer Foundation. There I had experience of a scheme which was a success. We always talk of schemes which are not a success. I believe that the Intermediate Treatment Fund was a great success. The fund was set up as an alternative to prison. Juveniles were kept in the community who had either committed a crime or were at risk of committing a crime but had not yet done so. Our responsibility was to promote community treatment for those juveniles. I believe that the system worked. I do not know that anyone has yet recognised that the system worked, but it has.
The objective was to set up programmes of activity devised by the communities from which the offender or the child at risk came which reflected the views of that community and answered the problems of the offender. If one wishes to divert people from crime, or to change their ways, one must do that through people whom they understand. The noble Earl, Lord Mar and Kellie, said that having spoken to prisoners in Scotland they began to consider changing their ways. In the Intermediate Treatment Fund we found that getting someone to talk about his past, his crime, and his future was the first step to success. It was very difficult to do that. One never knows what is disliked by an offender and what will act as a deterrent in the future. However, while I was with the Intermediate Treatment Fund it was evident that, more than going to prison, such people disliked being made to face their crime, to see what it had done to their relations and to them. If they went to prison, they could shrug the matter off, but they did not like going through a form of restitution. However, although it was disliked, it was effective.
The numbers of people who went through the courses that we devised for them were large. Of those, 82 per cent. did not come back for re-sentencing. That figure compares with the system that is now said to work—prison—of which number 80 per cent. quickly return for re-sentencing. The figure of 82 per cent. who did not require re-sentencing represents a story of success.
I found the scheme a most stimulating experience. Members of the community hurled themselves into the scheme. We were being urged to enlist citizens in such activities. Active citizens came forward in droves. Many people who retire have nothing to do. There were plenty of people who were anxious to assist. If the young offender had a special requirement, there were always people in the community who had the necessary skill and experience to do what was needed to reform the child.
On the whole, it was a considerable success and something of which I was proud. Just before I left in 1990, we had our 10th birthday and we had begun to get through most of the growing pains and the scheme was working properly. We went round the country looking at various projects and everywhere there were enthusiastic groups running them: in Sunderland and especially 448 Liverpool, as well as curious places like Penzance, which had an extremely good project, Basildon and Southend. They were all working well.
That kind of project has an effect on the community, the community works in it and the people who helped to draw up the courses began to take an interest in the local problems, such as unemployment, drugs or whatever it might be. People joined in trying to cure the root cause of offending. That was a valuable side effect and on the whole it all worked well.
I was sad when we came back from the trip. We went around the country and felt that we had seen something good growing, doing the job it was set up for. The Government had set it up in order to divert people from crime into some other occupation. One of the objects was to introduce them to other activities, keep them active, not necessarily to provide work but to find them something to do. It is a great way of avoiding people "seeping" into crime. It worked extremely well and I wanted to make that point.
When I came back, I was patted on the back and told: "You've done well". However, without further ado, I was told that my money would go, it was being tapered off and the project would be taken over by the private sector. There was no prior discussion and, while I was handing over to my successor, the noble Lord, Lord Elton, I was told that it would happen, the private sector would take it over. Ever since then, I have felt that we should provide it and it seemed to me the one thing I had found that had a proper foundation in the community. Youngsters will be influenced by their community, they talk the same language, they come back to the community and to those who suffered from their crimes. Those people are the best ones to talk to youngsters about the effect of their crimes and that has a remarkable result.
I wanted to make that point because I felt extremely guilty when my money was suddenly taken away and felt sorry for all the splendid people all over the country with whom we had become close friends and who had done so much. One felt one had let them down badly. I also felt sad for my poor successor, there was little I could do except cheer on the sidelines and hope that I could help. I think that he has got the scheme going now. It was an extremely good project, relying on the community, but that community may now be disillusioned because people have been left high and dry for some time with virtually no government money coming in—£500,000 per year for the whole country. People of every political persuasion said to me: "It is measly, you ought to be getting a great deal more". Nonetheless, through the work of volunteers we were able to encourage enough money to come in. We managed to get charities interested, with masses of volunteers. Once we set people off with their start-up costs, premises and the equipment that they needed, they would be able more or less to carry on without anything further than moral encouragement and a little help in various ways which they might want of a technical kind.
I wanted to make all this clear because I imagine that the people who helped me felt that to some extent they had been left high and dry. I wanted to make amends by 449 saying that they were magnificent and that there are people in the community who are marvellous in leading young would-be criminals away from crime.
A further point which worries me is the new legislation on the secure training centres. I have been associated with young people for a long time and it seems to me that it is a large enterprise for not many people. The Minister mentioned some good examples of people who were out of hand and we know that there are those who cannot be controlled except under restraint. There is a case for restraint being applied to them, but there are not many of them, according to my information. The proposal is to have 200 places over live years, which will cost £30 million overall, with 40 young people in each centre. That is a lot of money. There are a number of secure places already under local government and I gather that more are to come from the Government. I hope that they will come under local government. The point was well made by the noble Lord, Lord Williams of Mostyn, who said: "These are children who will be in prison". The secure training centres are far too like prisons, it seems to me, with the rules of prisons. So far as I can see, there is the possibility of transfer to an adult prison if there is no room for them in a secure training centre. The rules are not those which children will react to very well.
There also seems to me to be an absence of provision for care. I do not know who will run the secure training centres but presumably they will be built and run by the private sector. Who will the staff be? It will be interesting to find out. I know that the Prison Service feels it is inadequately equipped for the job and has no wish to do it. I run a curious school for children and one has to realise that they need an enormous amount of activity, with skilled people to keep them occupied. I hope that the Minister can give me his reassurance that there are plans to give the children skilled people to look after them, people who will know how to do that. I may not be fully informed, but I was told the other day that there is no provision for reform. Children are active, even if they have been bad; they want something to do all the time. I have them running round my estate and they make a huge noise and are always doing something. Those children may deserve punishment—I quite agree that they probably do—but one never knows what the punishment is. The children that we had under Intermediate Treatment regarded being taken through a course of understanding their crime as being a worse punishment than going to prison.
I hope that the Minister can reassure me that there will be provision for skilled staff and that it will be possible to put all the secure places under local government. I believe that the new centres will be run by local government and I hope that there will be provision from the Department of Health under the Children Act for care and that it will be obligatory.
Those are the two points that I wish to make. I should be grateful for some reassurance on them. I should be grateful too for reassurance that there is a possibility that the children may be placed near enough to their home. One of the points that has disturbed me is how far apart the centres are likely to be. There are five of them in the whole country. I agree with the report of the noble and 450 learned Lord, Lord Woolf, which pointed out that it is necessary for children to receive home visits and have the feeling of being attached in some way to their home. I hope that those points are in the Government's mind when they set up the system.
§ 8 p.m.
§ Lord Alexander of Weedon
My Lords, perhaps I may first apologise that a business engagement means that I need to leave before the end of this debate.
I believe that all of us are only too well aware of the public concern about crime. I should like to make it plain that I support the Government in treating this issue as one that calls for priority. Better crime prevention is crucial; so, too, is improved detection. The current clear-up rate of 26 per cent. must be far too low, Similarly, the conviction rate of 2 per cent. of recorded crime, leaving 98 per cent. of crimes going unpunished, can give the public no faith that offenders will be brought to justice. I hope that we shall look sympathetically at the aims of the Home Secretary and of the Government as a whole in bringing forward a Bill which seeks to improve the position in so many respects.
I should like to focus particularly on one aspect of the Bill; namely, the proposal in Clause 32 to modify the right of silence of a suspect immediately on apprehension, in transit to the police station and when in the police station. In giving what are my personal views, I am also giving the views of Justice, the all-party law reform group, of which I am chairman. As noble Lords will know, Justice has particularly valuable experience stemming from the major role that it has played over almost 30 years in the investigation of miscarriages of justice.
There is no doubt that our system of criminal justice calls for much improvement and streamlining. It is in my view hedged about by rules which make it too adversarial and too cumbersome, and which provide too much scope for the guilty defendant to seek to obfuscate the issues and hoodwink the jury. Improvements are needed to meet the public expectation that the trial process should be less of a ritual, less of a game and better at convicting the guilty. Yet, as recent well-known cases of miscarriages of justice have shown, improvements are also needed to prevent wrongful convictions and to protect the innocent. Change is needed to maximise the prospect: of convicting the guilty and yet minimise the risk of convicting the innocent. I hope that we all share this aim, stated so clearly by my noble and learned friend Lord Hailsham earlier in this debate.
For me, the absolutely central improvement would be to sharpen the focus of the issues by the time of trial. At present, in almost all cases a defendant need say absolutely nothing right up to trial. There seems no sensible reason to retain that archaic approach. It is unsatisfactory that a defendant should be able to keep his cards close to his chest right up to the trial. I believe that once the prosecution has laid out the case upon which it will rely at trial and the defendant is advised by a lawyer, then the defence should be required to make 451 the outline of its case plain. That is fair to society as a whole. The great American jurist, Benjamin Cardozo, once wrote:Justice, though due to the accused, is due to the accuser also".It is only fair to victims, witnesses, juries and the public that we should ask for defence disclosure. It will much reduce the scope for attempts to confuse the jury. I am glad that the Royal Commission supported that viewpoint, which I believe to be widely shared by the legal profession, which I do not personally find over-conservative in this respect. In their interim response to the Royal Commission Report, the Government have indicated that they see some attractions in the proposal for defence disclosure. But it is, understandably but sadly, not in the present Bill.
I also believe, as does the noble Viscount, Lord Runciman, that it is appropriate that comment in proper terms—the noble Viscount summarised what those terms might be—could be made at trial on the failure of the accused to testify at that trial. I hope that that indicates that my credentials do not seek to maintain scales that are tilted in favour of the accused, and do not seek to maintain illogical rules or archaisms.
I turn now to my concern about what I see as the risks to the innocent. This Bill does not contain a proposal for defence disclosure prior to trial, when the prosecution has laid out its case and when the defendant is advised by a lawyer. Instead, it proposes that on apprehension, on the way to the police station, in the police station and even without the advice of a lawyer available, the defendant who exercises his right of silence will be warned that he risks adverse comment at trial. He will be told that he has a right, but he may suffer if he exercises that right.
That is a fundamental change to what has so long been regarded as a fair safeguard for the individual. Some say that an innocent defendant has nothing to fear from this approach. I do not agree. Most miscarriages of justice in the past have been fuelled by inaccurate confession evidence. Pressure on the accused to speak in a police station, which for many people is by its very nature unfamiliar, potentially oppressive and indeed intimidating, will increase the risk both of false confessions and of people being unfairly at risk because of their sheer inability to do themselves justice in an unfamiliar situation.
I am glad that so many in this House share that view. I am glad, too, that it has the support of those organisations that have great, immediate and practical experience of the nitty-gritty of what happens in police stations and in the criminal courts. The Bar Council, the Law Society, the Criminal Courts Solicitors' Association and the Criminal Bar Association all believe that change would be damaging. Within the Bar, opposition to the change is shared by those who prosecute as well as by those who defend. Indeed, Roy Amlot QC, former senior Crown prosecutor at the Old Bailey, has said,The presumption of innocence must be gravely affected because the onus is placed on the accused to provide his defence at an early stage and the court can infer guilt if he fails to do so".
452 But perhaps even more important than the unanimous views from across the legal profession are the views of two Royal Commissions which have considered this precise issue in the past 15 years. Each rejected the proposal that there should be an erosion of the right of silence in the police station. Each expressed the view that it could increase the risk of miscarriages of justice. I have the greatest respect and, generally, sympathy for the noble and learned Lord, Lord Ackner, but it is not enough for him to say with all his eloquence simply that those Royal Commissions are wrong. Those Royal Commissions gave reasons. In 1981, the Royal Commission on Criminal Procedure said this:It might put strong (and additional) psychological pressure upon some suspects to answer questions without knowing precisely what was the substance of and evidence for the accusations against them … This in our view might well increase the risk of innocent people, particularly those under suspicion for the first time, making damaging statements".In its report last year, the Royal Commission that was chaired by the noble Viscount, Lord Runciman, took exactly the same view. Yet, only weeks after its report, with no reasons given, the Government indicated that they would bring forward a recommendation that would disregard that conclusion. The noble Viscount, Lord Runciman, has reinforced that view today. I hope that noble Lords who heard him will also read his speech and that we shall heed his words.
As I understand it, the main argument for the proposed change is that the hardened criminal shelters behind the right of silence and that makes conviction more difficult. Of course it is frustrating to police who are making conscientious enquiries into serious crimes. But that change will not increase the chance of convicting such criminals. Both the Royal Commissions took the view that those who knew the system would remain silent and would justify doing so by stating that lawyers had advised them to remain silent until such time as the allegations against them were fully disclosed. By sharp contrast, the people who would be affected, as our experience at Justice shows, are the more vulnerable, the less experienced and the less articulate suspects. That risk is considerable.
Under the present Bill, the right to question would arise on apprehension, on the way to the police station and again in the police station. There is no obligation for a lawyer to be present. Indeed, such an obligation would be largely unworkable. Only 13 per cent. of suspects in the police station currently have a legal adviser present. That adviser is often not a qualified lawyer. I recently heard of an out of work actor who was filling leisure time by acting as adviser in that respect.
There is no requirement that the police should disclose the case that the defendant is somehow expected to answer. Nor is there yet the other essential safeguard of the requirement for a taped record of exactly what was said and what was not said. It is not a question of someone merely being required to state simply whether they have an alibi or why they were at a particular place. Adverse inferences may be drawn from a failure to disclose any fact at all which was relied on in defence.
I see this measure as a charter for unlimited police interrogation, which puts the accused at risk if he does.
453 not answer immediately, fully and lucidly. This all takes place in an unfamiliar atmosphere and in an interview which, however fairly conducted, inevitably appears to the accused as frightening and intimidating. Indeed, a former president of the Law Society who has great experience in this area recently told me that even duty solicitors often feel intimidated in the police station. Perhaps that should not be so, but it is a fact.
Finally, I ask your Lordships to consider how the proposed system would work in practice. Let me read out the words of the caution which, I understand, would be administered to a suspect:I am going to put some questions to you. You are not obliged to answer them. But if you do not mention now something which you later use in your defence, the court may decide that your failure to mention it now strengthens the case against you".Your Lordships may of course all be instantly capable of the mental gymnastics which allow you to digest the news that you have a right of silence but that if you exercise the right, you may be adversely affected. But there may be lesser mortals who find those statements, if not incomprehensible, self-contradictory. To such lesser mortals they may well appear to put on them a powerful need to speak and provide an answer to every question and every insinuation. If so, whatever protection the judge may offer at trial, the right of silence will be eaten away. Surely some will find it a thoroughly confusing ritual. Many will see it as pressurising a suspect. I see it, in Lord Reid's great words, cited by the noble and learned Lord, Lord Ackner, as unfair to the accused.
The Royal Commission which reported last year was set up because of a deep anxiety as to the way in which miscarriages of justice were undermining confidence in our legal system. Most of those miscarriages reflected unsatisfactory pressure in the police station. That has been the weak area in our system. More, not fewer, safeguards are needed. It would be most disappointing if, in response to that canker of miscarriages of justice, the protection for those apprehended and taken to the police station were not strengthened. Surely it would be highly ironic if, as a result of this proposal, such protection was reduced.
I indicated at the outset that I have much sympathy with what the Government seek to do to meet public concern about crime. I am content that there should be reasonable comment on the failure of an accused to testify at trial. I believe strongly that there should be defence disclosure, so that everyone may know the issues at trial. I believe that that would help convict the guilty but would also protect the innocent, provided—but provided only—that we do not erode the right of silence in the police station.
I apologise to my noble friend the Minister, whom I support in principle on this Bill, for raising these doubts. But they are deep and they are acute. I temper my apology by saying that I hope he will accept that I believe that they transcend party politics, dealing, as they do, with vital issues of individual human rights.
§ 8.16 p.m.
§ Lord Renton
My Lords, I too welcome the Bill. My noble friend Lord Windlesham pointed out that it is the tenth criminal justice Bill since 1945. I confess that I have spoken on all of them. Therefore I hope that your Lordships will hear me briefly this evening also.
The Bill is the most wide ranging and, in my opinion, the most courageous of all those criminal justice Bills. Indeed, it is so far-reaching that it has the longest Long Title in modern history. It is none the worse for that. As has been pointed out, we have very serious problems with the crime wave. It is with some reluctance that I. point out that, despite this being the tenth criminal justice Bill, and there having been a number of Bills for the treatment of offenders, criminal law Bills and two Acts for the administration of criminal justice—despite all those efforts by Parliament and the Government—crime has continued to increase, broadly speaking, year by year since 1945.
When I was a Home Office Minister and occupied the position now held by my noble friend Lord Ferrers, in 1961 not only did we have a criminal justice Bill but we published a White Paper on crime and punishment. I remember that at a reception the Archbishop of Canterbury at that time, Dr. Ramsey, came up to me and said, "This is splendid. I think the Government have done all they can and now it is up to the people." As politicians, we know that the people do not accept that view. They expect us to continue to persuade Parliament to pass laws to get more police officers and increase the powers of the police. Some noble Lords have pointed out that there are causes of crime which are beyond our control and that the people should be reminded by us, as politicians, that the whole of society has a part to play if we are to succeed in helping them in that way.
There are only about three clauses in the Bill for which the Government are not responsible. Those are the clauses on homosexuality, which no doubt will be discussed very fully at Committee stage. In view of what was said by the right reverend Prelate the Bishop of Lichfield, when he mentioned this matter and AIDS, it may be of interest to your Lordships to learn that in answer to a Question for Written Answer which I tabled recently, I was told that up until 31st December 1993, no fewer than 1,014 deaths from AIDS had occurred in the United Kingdom, and of those, 732 were deaths of homosexual men or men known to be bisexual. That will be a relevant factor when we come to consider the matter, and that is why I dare to put it forward now.
The provisions dealing with young offenders in the first part of the Bill are long overdue, whether or not they affect a large number of people. Whatever other causes there may be for the increase of crime among young people, it is clear that the soft attitude—many people call it the "understanding" attitude—of authority, whether it is Parliament, the Government, the judiciary or welfare officers, has been misunderstood and abused by the young. The time has come for authority to assert itself and those provisions are therefore necessary.
However, along with my noble friend Lord Windlesham I am worried about the logistics of the 455 matter. The young people will need to be accommodated when all the provisions in Part I are applied. That means that we shall need more accommodation than presently exists. It is a separate issue from the prison situation, which is chronic as we know. We have the largest number of prisoners per head of population in Europe and severe overcrowding. Thank goodness we are building more prisons, just as we did in the 1960s and as was done by my noble friend Lord Whitelaw in the 1980s when he was Home Secretary. It will be helpful if at some stage, not necessarily this evening, my noble friend on the Front Bench can let us know how the accommodation problems, which may arise when Part I comes to be implemented, will be dealt with.
In relation to Part III of the Bill, I listened with great attention to the ever-lucid and persuasive comments of my noble friend Lord Alexander of Weedon, as I listened to the noble and learned Lord, Lord Ackner, and to my noble and learned friend Lord Hailsham and others. Were I sitting judicially, it is a matter on which tonight I would reserve judgment. Frankly, the arguments are extremely serious. They are in serious conflict with each other. I want to read the speeches again—having already tried to listen to them—and hear also what is said in Committee. It is not an easy matter. It is a big change in our long process of criminal justice and, for the moment, I keep an open mind.
Part V of the Bill relates to public order. We have a long tradition of freedom in our country for all the people. But freedom is easily abused, sometimes by groups of people who put forward the most bogus reasons for so-called social justice and for being a nuisance to other people. We cannot achieve freedom for the community without order. Most criminal laws exist to protect the majority against the misdoings of the minority. It is only a minority of people who steal, and the majority must be protected from them. Part V breaks new ground in protecting the majority from the minority and in my opinion the Government are fully justified in that. It is an important Bill and we shall need to consider it at length. Meanwhile, I wish the Government well with it.
§ 8.25 p.m.
§ Lord Birkett
My Lords, I rise to give a brief but heartfelt welcome to Clause 83. Clause 83 is intended to extend the enforcement of the Video Recordings Act. Your Lordships may recall that last year I introduced into this House a short Bill with exactly the same purpose in mind. Your Lordships were good enough to pass it; it had a painless passage through another place and is now enacted. One point I always hoped would be contained in the Bill is the by-pass power for local authorities and their trading standards officers in the matter of pursuing what I call the villains of the video business. I may have persuaded several noble Lords that that was right but not enough for it to be included in that Bill. I am therefore delighted to see it reappear in this Bill.
I have a special interest and reason for being delighted; I am a vice-president of the British Board of Film Classification. That board suffers from several 456 frustrations, one of which is very much in your Lordships' minds at the moment; that is, that the parents in this country appear to pay no attention whatever to the classifications we make, no matter with what care we make them. Indeed, they appear to give no heed whatever to what their children watch, however unsuitable. But I shall not pursue that matter this evening. I feel that it will be pursued at great length in Committee when the Minister introduces the amendments he promised in the course of opening the debate.
The other frustration has been going on for a long time and Clause 83 may help to correct it. It is that, although we classify with the greatest care, there are plenty of people in the world who put out videos entirely ignoring our classification, sometimes transmuting them and putting back cuts that we made, and in many cases putting out videos with either false classifications or none at all. Some of those are video nasties. They are distributed like that because it is known that we would not give them a certificate. Indeed, the phrase "video nasty", which is being much over-used at the moment, was coined in the old days for that very reason; that is, the video was so nasty that it was not likely to receive a certificate. Nowadays it is used by everybody for videos they do not personally like, which is a rather more confusing and less helpful definition.
One of the problems of uncertificated videos is that if one is discovered in a local shop, the trader may well be prosecuted. But, whether or not that prosecution is successful, if it transpires that the real villain of the piece is a distributor who is distributing the videos wholesale but he is not in the same local authority area as the dealer who sold or hired them, the local authority and its trading standards officers cannot pursue that villain in that other place. They must needs go to the other local authority and try to persuade it to mount a prosecution, which in many cases it does not do. That other local authority may not have the time, money, resources or even perhaps the will to do so. In the rare cases where it does, it must needs mount a completely new prosecution and start all over again. The by-pass power enables the trading standards officers and the local authority prosecuting in one area to pursue the notional distributor wherever he is. That could mean an enormous saving in administrative time and cost. What is more, it will have a tremendously deterrent effect upon what I described as the villains of the video world.
Before I sit down I also give an even briefer welcome to paragraph 20 of Schedule 9, which I mention simply because there is a good chance it will never be mentioned again. It concerns the nature of a video work. We used to think of film. Then we thought of video, tape and even records. Now the wonders of the electronic world are such that it has become possible for works which look extraordinarily like videos and films to appear on computers for all the curious children that the computer world has produced. The clause merely redefines a work so that it covers any electronic medium; and not before time. I believe that those clauses will have a very salutary effect on the health of the video world. I commend them to the House.
§ 8.30 p.m.
§ Lord Wade of Chorlton
My Lords, I want to speak for a few moments on behalf of victims. We have talked a lot about what the Bill will do to those who are convicted of crimes. I should like to speak about what it may do for those who suffer crime—for those little old ladies whose homes are broken into and valuables they have kept all their lives are taken away and who are perhaps beaten up in the process; for those who try to run businesses in difficult areas and whose premises are continually broken into by young thugs who break down their doors and steal their products; for those who try to carry out their lawful activities in the countryside and in so doing are suddenly barged upon by hoards of people who hit them over the head, destroy their sport and cause great aggravation not only to them but to all those round about; for those in our society who try to live a peaceful life but find that all the time they have to adjust themselves to those who want to destroy everything. No one has mentioned those people.
We talk in terms of putting children into gaol, but we are not putting children into gaol. We are putting into gaol people who have been convicted of serious offences against other people and who have gone through all kinds of processes to try to rehabilitate them but have not responded. So what we have had to adopt are processes that take those people away and make secure the vast majority of people in this country who want to live a quiet and sensible life and get on with the main job of running their own affairs. There are in our society people who want to disrupt that. My noble friend Lord Renton referred to the minorities in society—the fundamentalists in our society —who want to impose their view on everyone else and are prepared to carry out criminal actions in order to achieve it. Is it not right that we should take action to protect the victims of those approaches? There are proper and legitimate ways to act if one wants to change society.
I welcome very much the Government's initiative. I hope that as the Bill goes through the House we will consider those people whom we have not considered so much this afternoon—the people who suddenly have their land invaded by groups who have no respect for their crops or animals and descend with their caravans and cannot be moved on. It is nonsense that law abiding citizens who are trying to earn a living should suddenly be invaded by such people and that legislation does not make it possible for them to be moved on. This legislation does make it possible and it is right and proper that it should do so.
It is easy for us to look at the matter in terms of the impact on the criminal. We forget too often those who suffer from those criminal activities. The noble Lord, Lord McIntosh, mentioned special legislation for racial harassment and for those who suffer from racial crime. I cannot see how a person who is not an Englishman suffers any more when he is beaten up than anyone else might suffer when he is beaten up. I find it difficult to understand that it is worse to harass or beat up one person than another. I hope that when we come to deal with that part of the Bill we shall realise that if we want to stop harassment we must increase the punishment for 458 everyone. It is just as traumatic for a little old lady to be beaten up as it is for a person who may have come from abroad and who lives here. I hope that we will see these issues on behalf of the victim and not the person who is committing the crime.
The noble Lord, Lord McIntosh, also referred to the fact that we were dealing here with the perpetrators of the crime and not considering those issues that might cause crime. I should have thought that this was a Bill in which those issues were not likely to be considered. The Government have brought forward other legislation to deal with those aspects. We now have running a regeneration scheme in our urban areas which is having a great impact on improving the standard of living throughout what are now difficult areas. We have recently taken through an education Bill which, it is to be hoped, will deal with some of those issues within our education system, which does not impose sufficient discipline on young people in the first place. There is no doubt that many of the education problems have arisen because people have taken a liberal view on the importance of having discipline in our society at an early stage.
This is a right and proper Bill to bring before the House. I believe that it will do much to improve the confidence of those who fear that crime might take place around them. Perhaps noble Lords will think back to when they had young babies. Was it necessary for noble Lords to worry about leaving them in a pram outside a shop or leaving them in a public place? Now we are all aware that our daughters would throw up their hands in horror at the idea of leaving their baby for any period of time unprotected for fear that the child might be whisked away and have some damage done to it. Those are the issues that we must be aware of in considering the Bill. I welcome it and trust that it will move through the House with everyone having in the forefront of their mind the victims of society whom we have so seriously to protect.
§ 8.37 p.m.
§ Baroness Faithfull
My Lords, I seek to speak on two aspects of the Bill. The first concerns the Government's response to the amendment on the competency of children, which was put forward by the NSPCC in another place. I take the view that the amendment should be strengthened by giving clear guidance to judges as to when children are to be considered competent.
It is disappointing that the government amendment in relation to children giving evidence on commission should have to await the results of Professor Graham Davies's research, commissioned by the Home Office, becoming available. There is a category of very young children who are left out of the court system because their memories will not stand up to the average delays of 10 months before they are called for cross-examination. Professor Davies's research will not cover these children because there will not be a decision to interview them. The argument in favour of postponing this new legislation does not therefore stand up and these children should not be made to wait.
459 My second point concerns the secure training order and the establishing of five secure units for children aged 12 to 14 who are persistent offenders. I ask the Minister whether it is true that the units will be built on prison service land? Is it suggested that those prisons will be Rochester, Oxford, Rugby, Doncaster and Consett? If so, the five centres do not cover the whole of the country. Thus parents will not be able to visit regularly nor take part in consultations concerning their children. Each of the five prisons will accommodate 40 boys and girls. I understand that they will be the responsibility of the Home Office. Will the Home Office contract them out to an organisation in the private sector? If so, will the staff be expected to be trained and experienced in dealing with such children? Is the estimated cost to run the five units £30 million per annum for five years? That is £150,000 per child per annum.
I have worked in the children's department of the Home Office, in the Department of Health, as a children's officer, and as a director of social services in a local authority. I have worked alongside juvenile delinquents and their families. I am not soft on crime. I applaud my noble friend Lord Ferrers and his right honourable friend the Home Secretary for seeking ways to diminish juvenile crime in this country. But I contend that the setting up of secure training units is not the way to deal with the problem. History, experience and research have proven that incarceration in residential secure units, far from the parents, the home and the community, fails in its objectives.
We should not allow the problem to get out of proportion. The Home Office Select Committee of 1993 reported that between 1980 and 1990 juveniles found guilty or cautioned for indictable offences declined by 37 per cent. A Home Office survey across 33 police forces during three months in 1992 found that only 106 young people in the country had committed 10 or more offences.
Many noble Lords have spoken of voluntary and professional organisations being against the setting up of secure training units. That was mentioned by the noble Baroness, Lady David. The organisations include the Probation Service, the Association of Directors of Social Services, the voluntary child care organisations, the Royal College of Psychiatrists, the Justices' Clerks' Society, the National Children's Bureau and Young Minds. There are many others. That is formidable opposition. Research carried out by the Home Office, the Department of Health, the Dartington Social Policy Research Unit and many universities indicates that prison-like schemes far from home prove to be unsuccessful; hence the closure of approved schools and detention centres.
What is the present position of young offenders? Local authority social services departments, under the auspices of the Department of Health, may set up secure units, often shared by a number of local authorities and in easy reach of parents, relatives and the communities of the children. The local authority secure units take remand cases and children where guilt has been proven. They act as an assessment centre for each child. Because 460 it is local, parents are involved in the formulation of a plan for each child. The Dartington research unit has written,Work which addresses the family structure of a child is likely to achieve some success".It may be assessed that a child can return home under supervision or go to a supervised foster home. The scheme is proven to be successful by the Coram Foundation. If a child needs long-stay residential accommodation there are many voluntary organisations able to deal with such cases; for example, the Charterhouse group. There are vacancies.
The problem is that some local authorities have not been able to set up secure units because of lack of resources. There are 300 secure places and the Department of Health is at this moment providing resources for 170 more places. There is in place the administrative structure to deal with children aged 12 to 14. So why set up a costly parallel structure which is unlikely to succeed? Why are two ministries dealing with the same problem? Under the Children Act 1989, local authorities and voluntary organisations can also set up intensive supervised activities. That was spoken to very ably by the noble Lord, Lord Henniker. In those arrangements children can remain at home or in a supervised foster home. The projects are known not only to the noble Lords, Lord Henniker and Lord Hunt, but also to my noble friend Lord Elton. They are called intermediate treatment centres.
Some excellent schemes are run by voluntary organisations. Here again, because of a lack of resources, many authorities have not set up such schemes. It should be said that there are not enough social workers in post and that their training of two years is inadequate for the responsibilities which they have to bear. It should also be said that preventive measures—for instance, the youth service in this country—have been curtailed because of lack of resources.
Those of us who deal with these children take into account very much what my noble friend Lord Wade said. In every case, when dealing with children who have committed offences, whether they be in a local authority secure unit, in voluntary homes or in the community, it is brought to their notice and they are helped to understand the sorrow and suffering which they have brought on the victims. I wish to underline that point.
I recommend an overall inquiry involving the Home Office, the Department for Education, the Department of Health and the voluntary sector. Discussion should take place overall and a report made to Parliament. I also recommend that in each local authority there should be set up a panel to co-operate in the prevention of juvenile crime in the area. Early detection of children in trouble is essential. The Home Secretary is to be congratulated on achieving a grant of £30 million from the Treasury. Surely, this sum, which is to be spent on 100 children, should be used in ways that would go far to diminish juvenile crime.
This morning I received a reply from the Prime Minister to a letter I had sent to him. I am grateful to the Prime Minister. Perhaps I may ask my noble friend the 461 Minister whether, as a result of that reply, the Home Secretary will be prepared to meet those of us who oppose the secure training units, realising that there are other and better ways of dealing with children who commit crimes in this country.
§ 8.47 p.m.
§ The Earl of Longford
My Lords, I have many things to say to the House about this Bill, but, to use scriptural language, I cannot say them now. The noble Baroness has made a formidable speech which will certainly cause a great deal of anxiety to the Government. In matters affecting children she has unique authority in this House and indeed in the whole country. I do not know of anyone who is better worth listening to. I shall leave the question of young offenders this evening to the noble Baroness although I have written a book on the subject. If no one wishes to buy it I suppose they can obtain it in the Library here.
The noble Lord, Lord Wade of Chorlton, referred to victims. The Government talk about helping them rather than the criminals. Anyone who was present at the debate in this House not long ago will know how shocking is the attitude displayed towards victims. There is general condemnation. Do not let us suppose for a moment that noble Lords opposite have a helpful message for victims at present anyway. As regards the privatisation of prisons I have called that "obscene" before now and I shall continue to describe it in that way.
I shall confine myself to discussing a general question. It is an everlasting question which no doubt troubled my distinguished colleague here, a former Home Secretary, Lord Merlyn-Rees. It has troubled the present Home Secretary, his Labour successor and many others. The question is this: how does one reconcile an effective law and order policy with constructive penal reform? It will never be an easy question nor one which will ever be perfectly answered.
In the years before the arrival of Mr. Howard on the scene, various Home Secretaries (all good Conservatives) made a gallant attempt, with one possible exception whom I shall not indicate now. No, I am not making a bitter speech, you will understand. They made a gallant attempt: they tried to solve that problem and on the whole, considering the increase in crime, they kept down the prison population. Indeed they even reduced it in the years before the arrival of Mr. Howard—or at least I believe it may have begun to increase just before he arrived. Mr. Howard, however, adopted a new approach. He arrived on the scene without, of course, previous knowledge of prisons. His most ardent admirers have only been able to argue that he once visited Brixton, and they have never quite said when he visited Brixton. However, let us accept that Mr. Howard once visited that prison and within a finite number of weeks he emerged with a policy containing 27 points to cope with crime.
People said that Mr. Gladstone was an old man in a hurry; this was a Home Secretary in a hurry, and so now we have the present Bill. All that talk at the Conservative Conference, summed up in that memorable phrase, "Prison works"—that is a phrase he must 462 now regret—would certainly never have been used by his predecessor. I do not think that until Mr. Howard arrived on the scene it would have been used by the noble Earl, Lord Ferrers, who has defended all those predecessors so eloquently. As I say, Mr. Howard has now come forward with a new Bill, which we have before us.
Recriminations apart, and looking to the future, how far can we see our way forward in terms of trying to reconcile a policy of effective law and order—in other words, prevention of crime—and constructive penal reform? Summarising in my own words, I would say that we have to adopt a policy towards prisoners, not only while they are in prison but after they leave, which will make it much less likely that they will commit crime in the future. That would be the surest way of reducing crime in the future.
Speaking in "shorthand", as is best at this time of night, I think the clue is to be found in two words: resettlement and aftercare. The idea must never be abandoned of prison being a total educative process. But let us talk about the more limited objective of trying to prepare prisoners for when they leave prison, and of looking after them when they leave. In a moment I will indicate one or two valuable experiments made by the Home Office, because I do not think the picture is entirely black. However, it is all on a very small scale. I visit prisons once a week and I can think of one particular prisoner whom I saw the week before last who was leaving prison three days later. He had no idea of any plan at all for his future. There may have been something planned somewhere in the Home Office, but nothing had come through to him. All he could say was that when he left prison he was going to take his suitcase and go to the probation officer he had been told to see, dump his suitcase down and say, "Find me accommodation".
That was all he felt he could do after some time in prison. He had been in and out of prison and had served a very long sentence. That was all that had been done for him. The vast majority of prisoners are not catered for at all. Resettlement is still on a very small scale and, so far as the Home Office is concerned, aftercare has even less importance. Again, I want to be fair to the Home Office, or shall I say less unfair than some people think I usually am? I would suggest that Members of this House who have not visited Latchmere House go there and see it. It is a marvellous resettlement prison. The regime is so enlightened that I dare not mention it in case it is stopped by the authorities higher up. Again, there is Blantyre House: another marvellous place, although I do not believe it describes itself as a resettlement prison. There is also at least one other resettlement prison.
If your Lordships ask on what scale all this is happening, there are 140 at Latchmere House; there were 95 when I last called at Blantyre House and there might be another 100 in the other resettlement prison. One or two units have been started. I visited a resettlement unit in one prison—actually in Canterbury Prison—for 20 people. It is all a bagatelle, really, compared with the problem of coping with 90,000 prisoners, we are told, leaving during the year. I fear that 463 the Government have hardly begun. Here, I am not blaming Mr. Howard—I am not blaming anybody in particular—but I am just looking to the future. This is the way forward. I know that we cannot discuss this tonight but I hope that sometime in the future we shall be told that some steps are being taken. However, it will have to be on a different scale altogether from the tit-bits that I have just mentioned.
No doubt there is some excellent voluntary work being done, in NACRO, Apex and the New Bridge, with which I have been associated for so many years. But all that merely touches the fringe of the problem. We shall never get any real advance in aftercare until we have a statutory arrangement that when you leave prison some authority—it would be the Probation Service no doubt, but in collaboration with the Prison Service—takes responsibility for trying to look after you. Such a system does not exist at present.
At present, resettlement and aftercare are hardly beginning. What is going on is good—in my experience, very good—but at the moment it is just scratching the surface of the problem. I know that the noble and learned Lord, Lord Fraser, will not be able to deal at any length with this tonight, with 46 speakers, and I may myself have to apologise in case I have to leave before the small hours. However, I would ask him to look beyond the immediate situation and ask himself whether aftercare and resettlement, combined with an effective law and order policy and combined also with constructive prison reform, would not help us to reduce crime.
§ 8.57 p.m.
§ Lord Orr-Ewing
My Lords, we always enjoy listening to the noble Earl. He has a wide range of interests and a huge spectrum is always covered.
We in this House have worked extremely hard and assiduously on this tremendous Bill. We have heard that there are about 152 clauses and 11 schedules. It has been hard work, but we are a revising House, and increasingly so. Some of us, from all parts of your Lordships' House, are not completely content that the age of consent of 21 for homosexuals which has existed for some time should be reduced to 18. I have a suspicion that if we were ever to have a national opinion poll on the issue, most of the mums, grandmums and even great-grandmums would be with us in voting to restore what has existed for some time.
Why should we do that? (Clearly from the debate so far that may not be the only amendment we send back to the other place. Among the many expert lawyers there will be quite strong proposals about updating, revising, making amendments and goodness knows what else. I suspect we shall be spending a long while on the Committee stage of this Bill.) I am advised by the professionals that the sexual impulses of the young, particularly between the ages of 14 and 16, are certainly not crystallised and are even highly unstable. If approached by 20 year-olds, or people even older, they may well be persuaded to experiment. Some young people develop more slowly than others, as we all know from our schooldays. It is possible that even at 18 some 464 are not stabilised. It would seem therefore that we ought at least to invite the other Chamber to think again on this issue. Clearly some legal framework is necessary to discourage the spread of homosexualism. The debate in the other place was pretty muddled, and took place under tremendous pressure. I wonder whether they should not be given a chance to think again. We have seen how confused we all are in this House when we have a free vote, as we shall on this issue. We are never sure which Lobby we should be in until we recognise our friends.
§ Lord Orr-Ewing
My Lords, no, we are not told. So we are pretty mixed up. The Commons was mixed up and under tremendous pressure. Many MPs, particularly those with small majorities, received letters saying that homosexuals in their constituencies represented 10 per cent. of the electorate—a gross exaggeration by any standards—and that if they did not support the vote for the age of 16 their seats would be at risk. They were under a great deal of pressure.
I went to see the police today. I asked them how many people were marching during the big Commons debate. They told me that about 5,000 left Piccadilly Circus to march towards Parliament on 21st February and that 4,000 arrived here. Many of us saw and heard them. They were noisy and emotional. I asked how many people were injured. The police said that they had to close and lock the gates to New Palace Yard because the crowd was storming it. Many of my friends from the Commons and many of us here could not get our cars out through New Palace Yard. People's cars had to be driven out through our exit. Six policemen were seriously wounded and one sergeant was knocked unconscious. I am glad to say that he has recovered. On 14th March, the second time the matter was debated, 4,000 people were counted marching to support the proposal.
This is not a party political matter. We have supporters on all sides of the House. Some friends argue that, as the democratic vote is given at 18, it is right that people should be able to choose their sexual futures at the age of 18. But that is not a logical argument. If there were certain ages when one could start drinking beer or whisky, or taking marijuana when it came into fashion, there would be an awful muddle. So I do not accept the argument relating to when one can vote. And how one votes can change; otherwise we would all be sitting on this side for ever and Members opposite would always sit there. One can change one's vote, but once one has been seduced into homosexual practices one may stay that way for the rest of one's life.
I looked also at how the Crown Prosecution Service operates, because it will be responsible for activating the law. The system has become strict. I looked through the code under which the CPS operates. It is a strict code. The prosecution must be in the "public interest". How the hell does one prove what is in the public interest? If two young people are found in a public lavatory, is it in the public interest to prosecute them? A Written Question was asked relating to how many prosecutions 465 had taken place under the CPS code in the past three years. The answer was that for the whole country there were nine in 1990, 10 in 1991 and 12 in 1992. Sir Ivan Lawrence, MP, also asked the Home Secretary how many males under the age of 21 had been prosecuted, and prosecuted and convicted, over the past 10 years. The answer was "practically none".
It is not as if this involves a tremendous legal operation. We should remind ourselves that this is the year of the family. The House should do nothing, should take not one small step, to make homosexual behaviour easier. We should support all family relationships because many fall apart. People form new relationships, and the family suffers.
The country looks to the House of Lords to act traditionally. We should give the other place a chance to rethink the way it acted last time and to take a more estimable position.
§ 9.5 p.m.
§ Lord Avebury
My Lords, I start by echoing most warmly the congratulations which have already been expressed to my noble friend Lord Mar and Kellie on a thoughtful and practical maiden speech, coming, as it did, from someone with a long and close knowledge of the situation relating to juvenile offenders in Scotland. I note in passing that the Bill does not extend secure units to Scotland. It may well be that my noble friend will have some further advice to offer us in Committee on how effective are the comparative arrangements for young people in Scotland compared with what is proposed in the Bill for England and Wales. We greatly look forward to hearing from him on that subject.
Every speaker has agreed that we are right to express concern about crime, and I do so also, but my concern is largely about the causes of crime and not about picking up the pieces after the crimes have been committed. The Bill is concerned entirely with picking up the pieces, and there is nothing in the Bill that touches upon the causes of crime, as my noble friend Lord Wigoder pointed out. If the noble Earl, Lord Ferrers, wants to see crime reduced, as he said he did at the conclusion of his remarks, then let him do something about the causes of crime; let him not increase crime, which is what the Bill does, by criminalising acts that are at present within the law, and by detaining young offenders in new academies of crime which, as the noble Baroness, Lady Faithfull, has reminded us, will cost the taxpayer at least £30 million a year to operate. Those expensive anterooms of the penal system, as they have been described, are the product of Conservative fundamentalism.
All research, including studies by the Government's own departments, condemned the locking up of youngsters and proves that it turns them into recidivists. The noble Baroness, Lady Faithfull, appealed to the Secretary of State to listen to the voices of all those who are proposing sensible and practical alternatives, such as those she mentioned tonight. I only hope that he will be prepared to do so; although he never listens to the advice of his civil servants, preferring generally to rely on his own unaided prejudices. That is how we get to this Bill. Through the columns of a newspaper today he 466 had the temerity to warn your Lordships that we should not throw out any of the crackpot ideas in this Bill. I hope that we shall disregard that warning and do our duty, as we swore when we took an Oath in this House.
The long list of speakers in today's debate is a measure of the acute anxieties which the Bill has aroused among professionals and people with a great deal of experience but to whom the Government have turned a deaf ear. We have all been deluged with representations powerfully argued by professional organisations. If one attempted a comprehensive analysis of the contents of the Bill it would be difficult to know where to start. During the few minutes that I intend to speak I shall concentrate on only four issues: aggravated trespass, trespassory assemblies, squatters and gypsies.
Perhaps I may begin with aggravated trespass, which is a new offence and a loaded expression if ever there were one. Most people will agree that where a large number of people assemble on land to which the public have no right of access —causing damage, for example, to scheduled monuments or preventing residents from going about their lawful activities—the police should have the power to remove them. But Clauses 63 to 66 go much further than that. Clause 63 criminalises the presence of the trespasser, making him liable to three months' imprisonment if he does anything to obstruct the lawful activities of others on the land or on adjoining land. Under Clause 64, if a police officer reasonably believes that a person is about to obstruct or disrupt activities on the land or on adjoining land, and he directs the person to leave, that person commits another offence which is also punishable by three months' imprisonment.
My noble friend Lord Hutchinson reminded us of the offence of "sus". Some of us fought hard to remove that offence from the calendar of offences. I remind your Lordships that it provided the police with power to arrest and charge a person when they had reasonable grounds for suspecting that he was about to commit an offence. After the prolonged arguments about that offence, I thought that it had been agreed that such a provision was dangerous and unsound, yet here we are having it reintroduced in another guise.
The kinds of activity which are caught under those provisions are very broad. Anti-hunt protesters, who have already been mentioned, motorway campaigners, environmentalists and even people taking part in ordinary protest meetings—for example, outside the local town hall —are swept into the net. In Committee in another place an example was given of the residents of a certain place trying to prevent the demolition of a 250 year-old tree. Mr. Maclean, the Minister who replied to the debate, said that it was a ridiculously hypothetical question. However, it seemed to me a perfectly legitimate one. The Minister went on to point out that the chief officer of police had to consider the law and make up his mind on various points.
Under Clause 65, the police must decide whether an assembly is intended to be held; whether it is to be held on land to which the public have no or restricted right of access; whether it is likely to be held without the permission of the occupier of the land; if not, whether 467 it may conduct itself in a way that exceeds the occupier's permission or the public's right of access; whether it may result in serious disruption to the life of the community; whether the land on which the assembly is to be held, or a building or monument on it is of historical, architectural, archaeological or scientific importance; and, if so, whether the assembly may result in significant damage to those important objects.
If the Minister was saying that because of the complexity of the decision which has to be made by a chief officer nobody can predict the outcome in any particular case, there is indeed a very serious objection to Clause 65: it is not formulated in sufficient precision to enable the citizen to regulate his conduct. That is a point to which I hope to return in Committee.
Finally in respect of Clause 65, "trespassory" is not defined. "Trespass", "trespassing" and "trespasser" are defined and the exclusion of "trespassory" from Clause 56(9) may be taken as an indication that it is not to be construed in accordance with the definition of "trespass", which in any case is circular. That may not seem to be too critical, but Clause 65 first provides that where the chief officer of police reasonably believes that any assembly is likely to have the characteristics there defined he may apply to the council for an order prohibiting trespassory assemblies. "An assembly" is defined as an assembly of more than 20 persons. That is another of those circular definitions which contains material ambiguities. But it cannot mean that any 21 people physically present on the land qualify because otherwise an assembly of 20 persons, which was lawful, would be made unlawful if another person arrived to join them. For example, if I write to 19 people inviting them to join me in a protest against a particular construction site on the M.11 and quite fortuitously another person arrives with either the same or different objectives —that person may wish to demonstrate in favour of the motorway—then there would be 21 people present. Does that constitute an assembly or do the Government intend that those 21 people should be there for a common purpose, because that is not part of the definition of "an assembly" in the Bill?
At the very least, let us avoid making those offences imprisonable. The Home Secretary, in his eyrie at the top of Queen Anne's Gate, believes that putting more people in prison for longer periods will reduce crime. This morning it was reported that 11 prisons are overcrowded by 40 per cent. or more, as the noble Baroness has already mentioned. The prison population has increased by nearly 5,000 since February 1993. I believe that it was the noble Lord, Lord Renton, who reminded us that we have the largest prison population per head in Western Europe. To make those prisons overflow with trespassers would be to compound the folly.
The Government also criminalise squatters who will be liable to six months' imprisonment if they fail to comply with the proposed possession order within 24 hours. That is the same penalty as is provided for child pornographers. Squatters are to be made liable to six months' imprisonment. Do the Government believe it to 468 be right that a squatter should be penalised with the same six months' imprisonment as somebody who is guilty of child pornography?
Very few squatters occupy private residences needed by the owner—in a 1991 survey, two out of 2,213 premises—but if they do, surely they can be removed without being sent to prison? Squatting does at least highlight the failure of market forces to provide accommodation for many people, whatever the Prime Minister may think. How does he know what makes people homeless? It draws public attention to the scandalous waste of empty properties, which could be dealt with, if we had the sense, by giving any local authority or housing association the power to apply for something like an interim possession order and to use unoccupied premises temporarily for housing, until the owner could show the court that he genuinely needed the premises for another purpose.
I turn now to the provisions regarding gypsies in Clauses 72 to 75, and I am grateful for the support of the right reverend Prelate the Bishop of Lichfield for what I am about to say. I start by observing that it might have been courteous if the Government had at least mentioned their consultations to me, even though it was their intention all along to destroy what had been carefully and painfully built up over the quarter of a century since the 1968 Act. I sometimes wonder if the Conservative Party might find a better name for itself when so much of its programme consists of undoing the work of previous generations, and replacing it with untried remedies based on its unquestioning belief in the virtues of private enterprise to cope with every social problem.
The 1968 Act imposed an obligation on local authorities to provide adequate accommodation for gypsies residing in or resorting to their area, and a gypsy was defined as a person of nomadic habit of life, without regard to ethnic origin. In effect, anybody who lived in a mobile home or vehicle was a gypsy. At that time, the traditional stopping places of the gypsies were being swallowed up by the suburbs, and sites used by gypsies which fail to meet the new standards imposed by the Caravan Sites and Control of Development Act 1960 were being closed. Gypsies had no alternative but to camp unlawfully on the roadsides, antagonising local residents and being harried from pillar to post by the police and local authorities. That is the situation to which the Government's proposals would return those gypsies who are not yet accommodated on official sites.
The Act was a bargain between the gypsy community and the local authorities. The authorities would provide enough sites for all the gypsies living in or travelling through their area, and when that had been done, the Government would give the local authorities extra powers to deal with unauthorised encampments, known as designation. At the time, the Government gave an undertaking not to use these powers in such a way as to produce patchworks in counties, with some parts designated and others not; but afterwards they reneged on that promise.
Local authorities proceeded to implement the Act albeit very slowly. They were particularly slow in the counties where there were prolonged arguments 469 between county and district about the suitability of particular sites. But there was a steady improvement, particularly after the Cripps Report, when in 1979 the Government provided 100 per cent. funding. It is estimated that, today, there are some 6,000 mobile homes on sites provided under the Act, with another 4,500 pitches still needed. More would have been done if the Government had not sabotaged the efforts of the local authorities. For example, Hertfordshire was going to provide three sites but it is now going ahead with only one because of the withdrawal of the 100 per cent. grant. Hertfordshire was the subject of a direction made by the Department of the Environment in 1988 to provide an extra 100 pitches, but has still failed to do so. Yet, no penalties are being imposed on it. It seems that there is one law for local authorities which have failed to implement the 1968 Act and a completely different law for the gypsies who will be thrown on the roadside by the provisions.
Everyone welcomed the Government's review of the 1968 Act because they wanted to see why it was taking so long to complete the task. Some points were obvious: the larger family size of the gypsy community meant that the demand of the gypsies themselves was increasing. Moreover, some people who were not from the traditional gypsy background were taking to a nomadic way of life, though how many is a matter for speculation. But everyone was astounded when the Government's proposals were published. The Magistrates' Association, the Police Federation, the Royal Town Planning Institute, the Association of District Councils, the National Association of Local Councils, the National Farmers' Union, and many more, wanted the duty to be preserved. Many also mentioned that the 100 per cent. funding was cost-effective compared with the alternative.
Over the last few weeks I have been deluged with letters from organisations and individuals, every single one of which opposes the repeal of the 1968 Act. There will be occasion to refer to their views in detail at later stages. I simply note here the powerful submissions by children's organisations including Save the Children Fund. I really cannot imagine how the government have the nerve to masquerade as a party of family unity and introduce proposals which are going to lead, inevitably, to families being shattered and more children being taken into care.
I know that, when they have ignored the chorus of criticisms from experts all over the country, the Government are not likely to pay any attention to anything said in this House. Therefore, I make no appeal to the Front Bench opposite to think again. I appeal to your Lordships to listen to the voice of reason and humanity and to join me in throwing out those objectionable provisions when the time comes. In many respects, this is a bad and misguided Bill. It is our duty to ensure that, when we have finished with it in a few weeks' time, we have eradicated from it the hallmarks of Tory bigotry.
§ 9.22 p.m.
§ Lord Stanley of Alderley
My Lords, I do not usually waste your Lordships' time by speaking on Second Readings. However, I intervene on this occasion because I had the very doubtful privilege of moving the amendment which became Section 39 of the 1986 Act which is to be updated in Part V of the Bill. As an aside to my noble friend Lord Orr-Ewing, perhaps I may say that I agree with him as regards maturity. I know that I was totally sexually immature at the age of 13. Perhaps I still am, though I do not regret it for one minute.
I welcome the Bill, especially Part V. I should like to thank the Government and, in particular, my noble friend Lord Ferrers, for taking note and for then taking action on the concerns expressed by farmers and country people over New Age travellers and raves. It has taken a little time to do so but, as my noble friend Lord Ferrers and his colleagues have since 1986 pointed out to your Lordships, there are considerable problems involved when dealing with New Age travellers.
What does society do when the law moves them on and takes away the vehicles which are their homes? During the passage of the Bill, I hope that your Lordships will produce some solutions to that social and humanitarian problem. I believe that it is the Churches' duty, for a change, to have some constructive views. My feeling is that doing away with the Caravan Sites Act 1968 will not help; indeed, we might build on that Act to deal with New Age travellers. Surely the Ministry of Defence has some spare land. For once, on this matter, I find myself in agreement with my noble kinsman Lord Avebury—perhaps for the first time in 60 years since we squabbled over who had the prime right to Penrhos beach.
It may be that I shall support some additions, and indeed alterations, to Part V, but my overriding concern is that it can never, never be right to allow anyone to break the law making an excuse that they do so because: they have children or indeed dogs who will be inconvenienced or dispossessed of their usually unroadworthy caravan. That way lies anarchy.
§ 9.25 p.m.
§ Lord Acton
My Lords, I fully endorse the authoritative speech of the noble Baroness, Lady Faithfull. The first 15 clauses of the Bill set out the Government's proposed regime for persistent offenders aged from 12 to 14. The heart of the scheme is the detention in secure training centres of certain offenders for periods of up to a year.
I naturally support the Government's concern for the victims of the crimes of these children. I am impressed that the Government are prepared to spend more than £30 million a year on these persistent juvenile offenders. But I fear the Government's proposals will prove only a short-term solution during the actual period of detention. The children emerging from the secure training centres are highly likely to re-offend. Thus, the longer-term result will only be a fresh round of victims.
The Bill permits a magistrates' court to impose a secure training order on a 12 to 14 year-old if the child has been convicted of three or more imprisonable 471 offences and has either breached a supervision order or has been convicted of an imprisonable offence while under a supervision order. The period of detention will be from three months to a year, followed by an equivalent period of supervision.
The Government have announced their intention to provide five secure training centres, each housing 40 offenders. Apparently private enterprise will build and run these centres. One aspect of this whole plan causes me immediate concern. The statistics on re-offending indicate that the courts are likely to impose secure training orders on a small proportion of girls. Taking an educated guess, girls will probably represent 5 per cent. of the 200 juveniles to be housed. Thus, there may be 10 girls in these centres.
The Home Office has indicated that any girls will probably be spread throughout the five centres. That would mean an average of 38 boys and two girls in each centre. How will their well-being be guaranteed? I should be most grateful if the Minister, when he replies, would say exactly what is the Government's policy on girls in the secure training centres.
Turning to the main point of the general dangers of custody for children, all studies, as has been said, indicate high re-conviction rates following custody and secure detention. For example, the 1988 Home Office green paper, Punishment, Custody and the Community, said:Most young offenders grow out of crime as they become more mature and responsible. They need encouragement and help to become law-abiding. Even a short period of custody is quite likely to confirm them as criminals, particularly if they acquire new criminal skills from more sophisticated offenders. They see themselves labelled as criminals and behave accordingly".
Nonetheless, with some juvenile offenders, detention seems the only resort. But detention in one of these new centres —far from home—will mean, as has been said, that the child is cut off from family and home social services. Judged by the example of the equivalent regime in Ireland, this will lead to disaster. The experience in the Dublin institution for 12 to 16 year-old persistent offenders shows a re-conviction rate within two years of leaving the centre of 94 per cent.
A better solution would be the use of small local authority secure units in which families and local authority services can provide a benign influence. Currently there are 290 such places for young people and the Government, as the noble Baroness, Lady Faithfull, said, have recently announced plans to increase the number by 170. With a small further increase in numbers, the local authorities should be able to cater for all the persistent young offenders likely to require custody.
The 1978 Dartington Social Research Unit Study, Locking up Children, found that of 587 young boys who had mainly been held in local authority secure units, 76 per cent. re-offended within two years. More recent research by the Dartington unit indicates that social service efforts which intensively address the family situation of the young offender are the most likely to achieve some success. Such efforts bring down the re-conviction rate to 60 per cent.
472 The Dartington statistics, compared with the Dublin statistics, suggest that the use of local authority secure accommodation could reduce the re-offending rate by some 35 per cent. Thirty-five per cent. fewer victims of such persistent offenders would represent a huge improvement on the likely outcome of the Government's secure training scheme.
Another troubling aspect of the Bill is the criterion of three or more imprisonable offences before receiving a secure training order. That seems imprecise, as the gravity of the required offences is not spelled out. Doubtless many secure training orders will be imposed where there is no alternative. But some offenders could better be dealt with by other methods in the community which have a better record of preventing re-conviction. Those include intensive supervised activity programmes, fostering and good residential care.
I believe that the way forward for persistent juvenile offenders—always bearing in mind the need to reduce the problem for victims—is by local authority secure accommodation and in some cases by other methods in the community. I hope that the Government will think again.
§ 9.32 p.m.
§ Baroness Miller of Hendon
My Lords, like others of your Lordships I should like to speak about the so-called abolition of the accused's right of silence. However, I shall do so briefly because so much has already been said.
There is a major and misleading misconception in this piece of verbal shorthand. As my noble and learned friend Lord Hailsham has already commented, there is nothing in the Bill which removes an accused's right to remain silent whether at the police station or at the trial. There is nothing in the Bill which compels anyone to answer accusations against him or her, or indeed to answer any questions at all. There is nothing in the Bill which requires an accused to incriminate himself or herself; and, above all, there is nothing in the Bill which removes the onus of proof from the prosecution or the presumption of innocence from the accused. I have to confess that I found it difficult to understand the very strong words of the noble Lord, Lord Hutchinson of Lullington, on these matters.
Another misconception was voiced by the noble Lord, Lord McIntosh of Haringey, when he spoke on 23rd November. He said:What is proposed is the abolition of a factor which has been part of our judicial system for many centuries".—(Official Report, 23/11/93; col. 150.]My Lords, no, it has not. On the contrary, the first statute of Westminster of 1275 legalised the torture of defendants who refused to plead. Heavy weights were placed on them until they were crushed or submitted. That is a procedure which I believe would not now be permitted under the Police and Criminal Evidence Act. Although I would like to hope that the provision had fallen into disuse long before, the measure was actually still law until it was abolished in 1772, 500 years later. It was replaced by the assumption that a prisoner who remained silent had pleaded guilty. It was not until as recently as 1832 that this was reversed and silence was 473 taken as a plea of not guilty. So far from there having been a right of silence for centuries, the rights of the accused to defend himself at all were severely curtailed. Until the 18th century, prisoners could not be represented by counsel in cases of treason or felony. Until less than 100 years ago, in most cases the accused was forced to remain silent as he did not have the elementary right to give evidence on his own behalf.
As the noble and learned Lord, Lord Lowry, said in his excellent maiden speech, the Criminal Evidence Act 1898, which finally allowed an accused to give evidence, made it clear that the failure of the accused to take advantage of this new right was not to be subject to comment by the prosecution. However, the same Act gave the judge power to comment in suitable cases about the accused's failure to give evidence. The noble and learned Lord the Lord Chief Justice ruled against a silent defendant only four months ago.
Defining what is a suitable case on which the judge might comment has provided a substantial source of fees to the legal profession for 100 years. Perhaps it is now time to move on. The prosecution would be rightly castigated, indeed its lawyers would be disciplined, if they withheld relevant evidence from the jury. The fact that the defendant failed, before the trial and with due safeguards, to give any explanation of his conduct or to answer when questioned is a material fact which should not be concealed from the jury.
The noble Lord, Lord McIntosh, in the same speech, threatened us with "substantial and weighty opposition" from his side of the House. Perhaps noble Lords opposite have forgotten about the Criminal Justice Act 1967, which compels a defendant to give advance notice of an alibi. I was pleased to hear the noble and learned Lord, Lord Ackner, refer to this matter. That Act was introduced by a Labour Government led by the noble Lord, Lord Wilson of Rievaulx. The noble Lord, Lord Jenkins of Hillhead, now of the Liberal Democrats, and the noble Lord, Lord Callaghan of Cardiff, both served in that Government and in fact they were both Home Secretary in the year the Act was passed.
Twenty years later, the Criminal Justice Act 1987 made it an imprisonable offence to refuse to answer questions by the Serious Fraud Office. Under the police and criminal justice legislation of the same year, advance notice has to be given of any expert evidence that the defence intends to call. So, despite the knee-jerk outcry from the civil liberties industry, the end of the world has not come or, to use the words of the noble and learned Lord, Lord Ackner, the heavens have not fallen in and the country has not become a police state.
We can go even further back than 1987 or 1967. The Road Traffic Act 1930, 64 years ago, required a person to disclose the name of the driver of a vehicle, which might very well involve self incrimination. That law is still in force. I hope that we shall hear nothing more of this plea for the good old days that never existed and that we shall examine this part of the Bill as a serious attempt to balance the scales of justice.
For an innocent person to be wrongly convicted is an injustice. But it is an equal injustice if a guilty person is acquitted because of the fictitious suppression of a very material fact.
§ Lord McIntosh of Haringey
My Lords, I wonder whether the noble Baroness will forgive me for intervening. She said that it is an equal injustice for a guilty person to be acquitted. Has she considered the effects of the injustice of an innocent person being convicted? Those effects are not only on the individual concerned but on society as a whole. Surely the noble Baroness cannot persist in the view that those are equal injustices.
§ Baroness Miller of Hendon
My Lords, I very much agree with the noble Lord that it is a serious matter if an innocent person is convicted. But I must also say, having been a victim once myself, that it is a serious matter when a guilty person is acquitted.
There is one other aspect of the Bill which concerns me but with which I shall take up only a few moments of your Lordships' time on this occasion. I am disappointed that the opportunity has not been taken to deal with the recent phenomenon of legitimate protests marches or public rallies being taken over by individuals who attend bent on confrontation—persons who equip themselves not with offensive weapons but with balaclavas and ski masks to avoid recognition after they start rioting. I hope that I may be able to introduce an amendment on this point for your Lordships' consideration.
On the whole, I believe that this Bill seeks to redress the balance, which lately has swung too far in favour of failed and discredited theories and against the public interest. I hope that when this House has finished with the Bill—which I warmly welcome—the public will have the better protection which it is Parliament's duty to provide.
§ 9.40 p.m.
§ Lord Ponsonby of Shulbrede
My Lords, the large scope of this Bill has already been described. In common with many of my noble friends, I have to say that I have grave doubts about large parts of it. There will no doubt be plenty of opportunity to explore those doubts at future stages of the Bill.
There is only one matter to which I wish to refer now, and I shall do so very briefly. Partly as a result of a public campaign—and I pay tribute to Ministers for responding to that campaign by facilitating a debate on the issue—the Bill was amended in another place to provide for a change in the homosexual age of consent. Or rather it provided for a change in the age that someone must attain before benefiting from the decriminalisation of homosexual acts between consenting adults in private that was afforded by the Sexual Offences Act 1967.
I spell out the actual effect of the law, as opposed to relying on the shorthand phrase "age of consent", for a purpose. The 1967 Act established the relevant age as 21. The amendment that was passed by an overwhelming majority in another place, which is now Clause 139 of this Bill, made the age of consent 13 throughout Great Britain; by a later vote, that was extended to Northern Ireland.
Despite the speech of the noble Lord, Lord Orr-Ewing, I have no intention of going through any of 475 the arguments that relate to the homosexual age of consent itself. What I want to say is this. For myself, I am convinced that there should be equality in the law in this area between heterosexuals and homosexuals. I hope to see such equality in the near future. But I do not believe that this is a battle that should be fought all over again in this House. There was a very full debate before the vote in another place. Another place came to a decision—and an overwhelming one. I can see no point in asking noble Lords on this occasion to reconsider the merits of an equal age of consent. On this point I am happy to see that I am in agreement with the right reverend Prelate the Bishop of Lichfield.
It flows from that that I had hoped that no attempt would be made to strike out Clause 139 in order to leave the age of consent unchanged at 21. I say that, knowing that some hold deep convictions on the matter. Such convictions are traditionally and rightly respected in this House. If another place has had its say on a matter of conscience, then this House is of course free to do so as well. But I hope that we shall not wish to do so. I repeat that I speak as one who would like to see an equal age of consent. I have to say that if the noble Lord, Lord Orr-Ewing, persists in seeking to remove Clause 139, then perhaps we should have a debate which includes the issue of an equal age of consent to give a proper balance to that debate. I point out that in another place far more Members voted in favour of 16 than voted in favour of 21.
It is our role as a revising Chamber to look at the detailed working of Clause 139. I believe that it would be right for us to use our time to look at that issue. The principle of 18 is established. Nevertheless, there may be some further secondary amendments that should be made. For example, the 1967 Act laid down a range of penalties for offences that are dependent largely upon age. We might want to look at those and adjust them.
More importantly, we might want to look at the position of 16 and 17 year-olds under the law as it will be. The tone of the debate in another place showed that protection of the young and vulnerable was uppermost in the minds of almost all who took part. I am sure that that will be the case in this Chamber.
I do not believe that enough people have yet grasped that, because of the structure of the law on homosexual acts, if an age of consent of 18 is decided upon, then those under 18 are left as criminals. Making them criminals lays them open to exploitation and abuse as well as to the stigma of criminality itself. I remind noble Lords that that is not the position of girls under the age of 16. If a man has unlawful sexual intercourse with such a girl, he commits an offence but she does not.
I stray into Committee questions, so at this point I shall sit down.
§ 9.45 p.m.
§ Lord Kenyon
My Lords, everybody in the country is concerned about the level of crime today. Only the criminals will not welcome the Bill as a great step forward in making Britain a safer place in which to live. For too long now we have seen a relaxation of standards, which has led to an unacceptable level of crime. It is not 476 a moment too soon to set right the balance, to restore public confidence in our law and its enforcement, and to return to the traditional values of a law-abiding society.
I welcome the strengthening of the courts' powers in making provision for young offenders. My wife sits on the juvenile bench. I cannot tell your Lordships how often she comes home full of frustration, having had to deal with a string of young offenders, often multiple re-offenders, with both her hands tied behind her back when it comes to sentencing. Of course, those children should never have come before the courts in the first place. But if they are not taught the difference between right and wrong at home, it falls on society to judge them. For that to be effective, it is essential that the powers of the court are adequate or those young people will simply go away laughing and re-offend.
I am disappointed that corporal punishment is no longer an available option. The threat of physical pain was a potent deterrent at school, much more so than the sentences that we hear about today which sometimes seem to end up as overseas holidays. Furthermore, that threat punctured the inflated egos of some children by showing them up in front of their friends.
Part V of the Bill is the section that I am most pleased to see. The powers to deal more effectively with unlawful invasion of private land by New Age travellers and the ability to remove disruptive trespassers from private property are a response to two problems that we, as land owners and country sportsmen, have been seeking to resolve for many years. The Bill goes a long way towards meeting the calls of land owners and sportsmen of Great Britain.
Three years ago New Age travellers descended on a farm near Bala in North Wales. To say that they descended like a plague of locusts would be no exaggeration. Perhaps I may describe briefly what the farmer and his neighbours went through and what was left when the travellers finally departed. About 40 acres of grassland were occupied by somewhere between 8,000 and 10,000 hippies for a total period of 15 days. The farmer lost the grazing on that land for some two months as well as losing the silage and hay that would have been cut there. In addition, fences, gates and even small trees were ripped up for firewood. Sheep were killed by the estimated 600 dogs which accompanied the group and village gardens and allotments in the village were cleaned out. The farmer estimates that it cost him in the region of £7,000 to £8,000. At the end of it, there were 22 10-tonne skips of rubbish to be collected and disposed of by the local council. However, perhaps the most surprising fact of all is that there were just a few police prosecutions for minor drug offences and there was not a single vehicle offence, despite the fact that a large proportion of the vehicles used had no current excise disc.
I welcome the reduction from 12 to six in the number of vehicles that must now be present before a senior police officer can take steps to evict trespassers under Clause 51, but I believe that the number is still too high. Often the vehicles are buses, coaches or large caravans. In theory, they could between them contain more than 100 travellers before that clause gives the police powers to act. I sincerely hope that the Government will 477 reconsider the clause and examine whether it is possible to include a minimum number of persons who would have to be present as well as a minimum number of vehicles in order to trigger the clause.
I am equally delighted to see the provisions to criminalise the act of aggravated trespass and to simplify the legal procedure that has to be followed in order for an innocent land owner to regain possession of his land when it has been invaded by New Age travellers. I am satisfied that the genuine rambler who inadvertently loses his way will be well protected by the provisions of the Bill and will not, as some alarmists try to complain, lay himself open to criminal prosecution —unless of course he goes on to attempt to disrupt some lawful activity taking place on the land. Merely being there by accident he runs no such risks.
The noble Lord, Lord McIntosh of Haringey, argued that this part of the Bill discriminates against hunt saboteurs while making no such legislation against those who hunt, shoot or fish. The answer is glowingly obvious: those who are hunting, shooting or fishing are pursuing a lawful activity with the permission of the land owner and probably paid a good deal of money for the privilege. I am sure all noble Lords recall the tale of Winnie the Pooh in which his friend Piglet had a piece of broken board outside his house which had "Trespassers W" on it. It was, he said, his grandfather's name and was short for "Trespassers Will". The Bill will not only nail back the broken piece of the sign that says "be prosecuted", but it will give the police the powers they need to carry that out.
Having welcomed so much of the Bill I share the concern of the right reverend Prelate the Bishop of Lichfield about the proposal to repeal Part II of the Caravan Sites Act 1968. As a borough councillor I am acutely aware of the problems that have to be addressed and, indeed, of the Government's reasons for wanting to repeal the legislation. But I am concerned that requiring gypsies to find their own sites through the normal planning system will not result in a long-term solution to the need to provide permanent sites for gypsies. From time immemorial, gypsies, like magpies, have acquired a reputation for a magnetism regarding property other than their own. I do not blame anyone who says, "Not in my back yard, thank you", but our country is too small for us to hide our heads in the sand and the bare fact is that they have to go into someone's back yard. While I am delighted to give the Government my wholehearted support in their insistence that this element of society pays its way like the rest of us, I have yet to be convinced that the repeal of Part II of the Caravan Sites Act is the best answer.
There is no obligation on anyone to become a criminal in the first place; it is their conscious decision to contravene the accepted mores of society, and from the moment they take that decision they understand that they run the risk of detection and punishment. Until we can emulate the thought police and ensure that our detection rate is 100 per cent. we have to set the level of punishment sufficiently high to deter as many as possible, and this Bill contains significant advances in that direction.
§ 9.52 p.m.
The Earl of Clanwilliain
My Lords, this late in the evening I want to mention just two subjects in the Bill, the first being Clause 139. I am afraid I was not able to come to terms with the thoughts of the noble Lord, Lord Ponsonby of Shulbrede, with whom I totally disagree. I hope to be able to discuss this subject without prejudice or partial affection, though I have some concern in the matter. I feel comfort in the fact that I am in concert with the right reverend Prelate the Bishop of Lichfield.
It cannot possibly be argued that boys can be compared with girls in the issue of gay rights. It is obvious that girls of 16 can have babies and boys of that age can be the father. But a boy of 18, let alone 16, cannot possibly assume the responsibilities of a father. He cannot sustain the parental duty, and that is obvious There is no reason therefore to assume that those two beings can be similarly compared.
At the same time we are proposing that such boys should be subjected to sex with predatory, elderly, promiscuous homosexuals. That must be stopped. It is our duty to protect our young. A recent leader in The Times said,It is a mark of a civilised society that it values the interests of its young more than abstract liberties".We must live up to that premise. As the right reverend Prelate the Bishop of Lichfield said—and it was said the other day by the most reverend Primate the Archbishop —sex in the Christian world is allowed within the bonds of the marriage vows but is not accepted outside those vows.
Equally, there is the question of the adolescence of young boys. They are going to experience and experiment with their awakening sexuality. Certainly, between boys of the same age there can be no useful and effective law. Only school and parental rules can control these matters. We should not be swayed by a minority who lobby so vociferously and dangerously outside the Palace of Westminster that 28 police vans were required the other day to control them. That only shows the danger of considering their claim. We have a duty to our young and we have to ensure that they grow up in a normal heterosexual atmosphere which recognises what is normal, and we have a duty too to demonstrate the self-evident fact that the 1 per cent. of the population who are homosexual have a case to be considered for their personal health and safety but should not browbeat others into accepting the abnormal as normal.
I am sorely tempted to take a leaf from the late noble and gallant Lord, the father of my noble friend Lord Montgomery of Alamein, who once moved that the age of consent be raised to 80. That would solve the matter very simply. I am mostly concerned with the act of buggery, which is unsafe, unnatural and unproductive. It is unsafe in that 75 per cent. of deaths from AIDS come from bisexual or homosexual activities. The fact that is unnatural is only slightly less obvious than the fact that it is unproductive. I shall enlarge on that point further in Committee. As the right reverend Prelate said, it is questionable whether this clause should even be in the Bill. The speeches of noble and learned Lords have 479 largely ignored the subject, which perhaps only confirms the suggestion that noble and learned Lords do not think it should be in the Bill at all.
The second part of my interest is where I come to terms with the noble Lord, Lord Avebury, and other noble Lords who have spoken on Clause 75 with regard to the treatment of gypsies. I have had representations from Wiltshire County Council, which feels very strongly that the measures are most unfair to those councils like itself which have acted on the Government's previous proposal in the 1968 Act. There are insufficient authorised sites, so, besides creating homelessness by moving the gypsies on, they will be committing an offence automatically as a result of the clause. If the 1968 Act was enforced on councils by the Government, as the Government already have powers to do, there would, without introducing new legislation, be enough sites to prevent gypsies committing an offence involuntarily.
§ 9.59 p.m.
§ Lord Spens
My Lords, if the noble and learned Lord, Lord Lowry, is said to be at the cutting edge of the criminal justice system and the noble Baroness, Lady Mallalieu, considers herself to be at the coalface, I think it can be properly inferred that I am a piece of coal. I speak from the point of view of the defendant. Among the speakers tonight I probably have a unique experience of that problem.
I take up the point of the noble and learned Lord, Lord Ackner, that the criminal justice system has to be fair and has to be seen to be fair; and then there is no problem with the right of silence argument. But the question is whether it is fair. I would argue that it is distinctly defendant unfriendly and at times defendant hostile.
I can illustrate the problem by saying that there is a cancer eating away at the heart of the criminal justice system. That cancer is evidence abuse in one form or another, hence my Question earlier this afternoon. Last year there were about 400 cases where convictions were overturned and the year before there were about 300. It is estimated that this year there will be 500 or 600. The vast majority of them were cases in which the evidence was overturned because it was unsafe in one form or another.
I intend to illustrate that point by three examples which come straight from the Guinness trial. For reference, I was arrested in March 1988 and acquitted in July 1993. That is nearly five-and-a-half years. Any criminal justice system which subjects its citizens to that sort of treatment is unlikely to be fair. I was charged with making a false market and with issuing a false document. During the trial I came across numerous pieces of evidence of abuse. I shall speak about three of them this evening.
The first is indicative of the problem, the second is illustrative of the problem and the third—well, noble Lords must judge for themselves. The first evidence which I produce for noble Lords is the practice of writing witness statements in advance of any meeting with the witness. That occurred on numerous occasions 480 in the Guinness case and in particular as regards the three witnesses who were chosen to give evidence as being shareholders in Distillers. Out of the 31 witness statements that emanated from that quarter, a majority of 15 or 16 were identical. They began with a predicated question which asked, if I had known that the acts complained of were illegal, would I have accepted the offer?
It was quite clear that these statements were presented without any pre-conversation with the witnesses and most of them signed blindly. When we talked to them they did not realise what it was they had signed. It cannot be right in any criminal justice system to put words into a witness's mouth on that scale. I am aware that certain Treasury solicitors think it perfectly proper to edit witness statements. However, it cannot necessarily make a system of that kind fair.
The second and illustrative point concerns a forensic report, which was produced, after much argument, as regards tapes which were to be used in evidence. First, the Serious Fraud Office denied the existence of any forensic report, but we persisted and eventually it turned up. However, on reading it it was quite clear that something was missing. Despite going back numerous times to the Serious Fraud Office and the police, there was always a denial that anything was missing and it was said that the evidence we had was all the evidence. But on the day of the voir dire when the tapes were discussed a new document was produced which was the forensic report. It had a missing paragraph in it. Perhaps I may read what it said:I draw your attention to Question 3 on the questionnaire regarding the continuity evidence. This always seems to be exploited by the defence, and by the number of signatures on this label it seems to be well travelled".That piece of evidence had been edited out of the original document without any reference at all to the court or to the defence. It had been handed over as a perfectly proper original document. Given that I was already charged with issuing a false document, I found that a little difficult to take.
However, the third point is more serious than all of that. In December 1988 there was a secret (and it is still a secret) tribunal. It was a licensed dealers' tribunal which investigated the activities of the broker through whom I had conducted one of my two Guinness transactions. This tribunal was chaired by a Member of this House (a judge) who had two lay City assessors sitting with him. It was a Roskill-type tribunal with no jury. It took evidence under oath and cross-examination, and with a judgment of crystal clarity it decided in December 1988 that there had been no false market and no breach of Section 151—two of the charges which I still faced at the time.
That judgment is still a secret. It has never been revealed; it had not been revealed to the Department of Trade and Industry, which was conducting the main Guinness investigation. It had not been revealed to the Bank of England, which saw fit to issue me with a "fit and proper person" letter based on those charges. It has still not been revealed other than by my sending the documents to those people. It cannot be right in any criminal justice system that that sort of judicial decision should be kept hidden for such a long time. It was 481 actually produced on the last working day before Christmas at five o'clock in the afternoon—2,000 pages, 54 days into my trial and 300 days after I started appearing in court.
It is hardly surprising that on that basis there is something seriously wrong with the criminal justice system. But I would ask your Lordships not simply to rely on my experience. I have here in my hand the transcript of an interview, an interview which was used as a statement and on the basis of which a somewhat ethnically challenged young man was held inside for many months. Let me read one of the paragraphs just to give your Lordships the flavour of the statement. It is about one of the defendants in the Broadwater Farm case, the savage murder of PC Keith Blakelock. This is what the statement says:There were more crowds throwing stones and cans and whatever at the police. I threw cans and stones and whatever was on the floor—and I threw a petrol bomb. They were hidden behind a fence and there was a bloke there who was pulling them over. They were stored in a green Unigate crate. I didn't know the bloke but he had a green serge Tortini tracksuit, white with red colour and stripes on the sleeves and a red or blue sign. The bottoms had red stripes down the sides and had two black zips at the bottom of the legs. He was wearing a hat, black silky with a red ribbon round it. He had a rough beard".In this 50-page statement he goes on to describe not only the throwing of petrol bombs and the firing of guns but being present at the actual murder of the poor unfortunate policeman. He identifies 27 individuals on that scale of description. Some months after the production of this statement his defence lawyers established incontrovertibly that not only was he not capable of being there on the night but that he was not there: he was miles away. He had not been present at any of the actions he had described. If the police—and there were three policeman involved in this—can write a statement of that detail under the protection of the Police and Criminal Evidence Act, it is very difficult to see how fairness comes into the situation.
I think one has to go a little higher to see where the problem, or part of it, lies. In my view, part of the problem lies with the Court of Appeal (Criminal Division). There is an illusion being perpetrated on the public in this court—the illusion that there are three judges who decide a particular case. That is not so. There is one judge, with two sitting with him to assist. He can if he wants—and he very often does—overrule his colleagues. It seems to me to be a waste of manpower to have a system that does that.
This was actually quite relevant because the right to silence was involved in the Guinness trials. If I may remind your Lordships, the inspectors went into Guinness in December 1986, and in January 1987 they suspected criminal offences. The inspectors interviewed everyone and then they started to arrest people. They said that they wished to use the interviews as "confession evidence" against the defendants. But those interviews were given for a different purpose and for different reasons. They were unprotected by the Police and Criminal Evidence Act; and they were used in a hostile manner against each of the defendants. In fact, in connection with one of the defendants in the first trial, 482 Mr. Parnes, prosecuting counsel agreed that he could not continue with the case if he could not use that evidence.
We took the issue to the Court of Appeal. That is why I say that there is a problem there. I shall read the penultimate sentence of the judgment:There was, in our judgment"—note the word "our"—sound reason for admitting the so-called confessions having regard to the relevant legislation which Parliament has deliberately enacted, albeit that that may appear to tend towards unfairness especially when set against all relevant provisions in the 1984 Act".That is the Police and Criminal Evidence Act. If the Court of Appeal will not uphold the provisions of the Police and Criminal Evidence Act, what chance is there for anyone down the line to do just that?
The problem is spreading. The Government are putting their head in the sand. They say that the problem does not exist, but it does exist and it is real. The problem probably arises from a statement by another noble and learned Lord, one of our greatest equity judges, the noble and learned Lord, Lord Denning, who said in 1980 when dealing with a civil action concerning the Birmingham 6:If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats and that their convictions were erroneous … This is such an appalling vista that every person in the land would say 'it cannot be right that these actions should go any further'".And he stopped the case. Eight years later he was to say again about the Birmingham 6 in another case:It is better that some innocent men remain in jail than that the integrity of the English Judicial System be impugned".The integrity of the English judicial system is what protects the defendant. If there is no integrity, we cannot give up the right to silence.
§ 10.12 p.m.
§ Lord Mottistone
My Lords, it is a little difficult to follow the noble Lord, Lord Spens, but I can say one thing to him, and that is that he is not the only one who has quarrelled with the law. I have been court martialled, admittedly 45 years ago, and found guilty. The experience of one's sword with its point towards one when one goes in to learn the finding is quite awe inspiring. I am certain that the noble Lord has never had that experience. I have to go on to say that I had no quarrel with the system or the people. The only thing that I did not like was the sentence. But, happily, as I had been advised beforehand would be likely to be the case, the Admiralty reduced the sentence to what I thought was reasonable, and so I went on to have a happy naval career thereafter.
We need to read with care what the noble Lord, Lord Spens, told us, and perhaps pick out a few threads from it which are serious. As I heard it, I find it difficult to accept. I should like to congratulate my noble friend Lord Ferrers on a succinct and cheerful introduction to this long and detailed Bill. I should like also to congratulate the Government on tackling the serious problems of law and order which have grown during the past 10 years. As a result of other changes in other legislation it has surprised me in my role in connection with the magistrates on the Isle of Wight for the past 10 483 years or so, that during the past five years the number of offences has increased while the number of cases brought before the courts has decreased. That strikes me as very strange indeed. I am not sure that the Bill will have any bearing on that. It is odd that when crime becomes worse fewer cases come to court.
As was said by my noble and learned friend Lord Hailsham, the underlying concern is for the lack of understanding about what is right and what is wrong of many persons in our community, including, sadly, several very young boys. Introducing new laws is only part of the answer to that. A greater acceptance of responsibility for teaching what is right and wrong by parents, grandparents, teachers, neighbours and in fact the whole community is also needed. That was emphasised by my noble friend Lord Renton.
Whatever we do in the Bill — and I am sure that we will get something useful out of it—we must somehow create a pattern in which family and local responsibilities for the behaviour of people become built into the country as a whole. There must not be a feeling of, "Oh well, there are so many little boys who are stealing motor cars—they are doing it at the age of 12. No doubt in five years time there will be others doing it at the age of 10". We must not have everyone saying, "The Government must do something". That is wrong; I am sure that it must be done by the community. We must try to organise things in a way in which the community not only sees its responsibilities but does something.
It is clear from what many noble Lords have said —some with great authority—that there is much doubt about whether the Government's many proposals are the best way of tackling the various problems. That is so even if the problems themselves are broadly agreed, which I detect. It is probably true to say that in some areas there is much dissension not only with what the Government have proposed but among your Lordships as to the approach to the solution. I hope that we shall have productive Committee and Report stages in this House and that we shall not be sitting well into August in order to cope.
As regards my contribution to the discussions, I shall be largely but not exclusively advised by the Magistrates' Association. The details of its advice are best left to Committee and later stages. Suffice it to say that I too have doubts about children of 12, 13 and 14 being too far away from home when sent to a secure training centre. My noble friend Lord Ferrers commented on having relatively few training centres with 40 people rather than many centres with only 12 people. That frightened me slightly because if 12 year-olds are sent from the Isle of Wight to, say, Bristol their parents may not be able to go there easily because they may not have a motor car or the trains may not go in the right direction. I cannot believe that it is right that parents should be too far from their children who are in a secure training centre, but I believe that it is right that such children should be in a secure training centre. How we cope with that is another matter.
I also believe that some of the provisions for bail go too far. Any automatic refusal of bail, as in Clause 24, is bad in principle. Surely it must be for the court to 484 decide whether a person charged with any offence, however serious, is under the particular circumstances of a particular case to be granted or not granted bail. For that reason also I shall argue against the clause relating to police bail.
We have heard a great deal about the inferences to be drawn from the silence of the accused. I would not go as far as many noble Lords argue; in particular, those wholly in favour of the right to silence of any accused. However, I do believe that there need to be stronger safeguards than at present in the Bill—a matter which has been raised. We shall be in a better position if we can find a way of strengthening the relevant clauses to provide those safeguards.
On a more personal note, I very much support what my noble friends Lord Orr-Ewing and Lord Clanwilliam said about the age of private homosexual acts being returned to 21. I think that even that is too young. It is very cruel to subject young men to the kind of pressures to which they can be subject when they become involved in a wholly unnatural association. I hope that we shall be able to reach a result on that. I certainly do not agree with what the noble Lord, Lord Ponsonby of Shulbrede, said. I hope that we may be able to debate that at a later stage.
I have other points to make for the improvement of the Bill but they are of less significance and are best left wholly to Committee stage. With those reservations, I have no hesitation in commending the Bill as a whole to the House.
§ 10.21 p.m.
§ Lord Mayhew
My Lords, I should like to make a single brief point about Clause 139 and the age of consent. I shall leave aside questions of morality which have already been debated this evening. It seems to me personally that there is a practical objection to the clause; namely, that it takes no account of the question of AIDS. It does not discriminate in any way between homosexual practices which are no hazard to health and AIDS, which certainly is a hazard.
Many years ago, the Wolfenden Committee asked itself and considered at great length whether the law should differentiate between anal intercourse and other homosexual practices. Members asked themselves, for example, whether that particular practice was unnatural or more unnatural than other homosexual practices or whether that particular practice played a special part in creating prejudice against the homosexual community.
After much consideration, the committee decided on balance that there should be no differentiation and as we all know, it recommended that all homosexual practices should be decriminalised for adults conducting those practices in private.
But of course, the committee knew nothing about AIDS. Let us suppose that the members of the committee had known that it is likely that that particular practice will condemn a person to a fatally infectious disease. It seems to me plain that the committee would have decided to differentiate and, in any way it could, to discourage it.
New Clause 139 does nothing to discourage it. Indeed, by decriminalising it for 18 to 21 year-olds, it 485 removes the stigma from it and weakens the deterrent effect. In the battle against AIDS, Clause 139 is on the wrong side. That cannot be right and must be looked at. It is not good enough to make objections about privacy and enforceability. There is a range of other activities which the British public rightly treats as criminal to which the same objections can be made; namely, drug taking, homosexual practices between 16 to 18 year-olds, according to the Government, and anal intercourse with a woman. In the age of AIDS, it cannot be right to exclude anal intercourse with a man from that list.
For that reason, I believe that that clause, if it is not suitably amended, should be strongly resisted.
§ 10.25 p.m.
§ Baroness Seccombe
My Lords, the Bill is immense and covers many issues which affect the everyday lives of all of us and our attitude to the deep problem of law and order in society today. There are many and varied opinions as to the causes of such behaviour, but tonight is not the time to develop the arguments. However, I believe that we have a duty to concentrate on measures to cope with the situation.
I welcome the Bill and the vast majority of its provisions. Obviously it is not possible or helpful—nor, indeed, would your Lordships wish me to—to comment on a wide range of issues at this late hour. Therefore, I shall confine myself to the one issue about which I feel most strongly. I refer to the question of what can be done about the comparatively few persistent offenders aged from 12 to 14 who bring mayhem and great trauma to their communities.
When I joined the Bench, it was the clerk who invited magistrates to join the specialist panels. I had always thought that I should like to be a member of the juvenile panel, but the clerk's request was for me to join the domestic panel. The immediate disappointment soon evaporated as I became engrossed in the new work. Indeed, I witnessed the difficulties from which so many of the children suffered—a rotten start in life. However, many families survived the trauma of family breakdown and single parents went on to bring up their children to be decent, law-abiding citizens.
At times, I have regretted not serving on the juvenile panel, but as the years have passed that has faded as I have listened, as has my noble friend Lord Kenyon, to the utter frustration of many of my colleagues. They have felt hamstrung and paralysed as their sentencing powers have been eroded and have just dwindled away. I believe that magistrates are sensible, compassionate people whose wish to serve arises from a desire to see a society where the laws of the country are respected and adhered to. Through their varied experience, I feel that they bring an understanding of the public's views on law and order. If, when they come to sentencing, they are disabled by lack of powers, then that, in my view, is unacceptable.
I believe that it is important to take into account the range of disposals of a case—beginning with a caution, followed by forms of discharge, fines, and community orders. All that happens before any form of custody is considered. For the majority of young people, those 486 penalties are adequate. It is pleasing to note that 87 per cent. of those cautioned do not again come to the attention of the police within the following two years.
I understand the principle and the importance of keeping families together so that young people can develop in the community, if necessary with the aid of probation officers and social workers. I am only too delighted when that form of treatment is successful. I admire the dedicated work carried out by the agencies. I respect their professionalism and high standards. But I was horrified when I heard that a chief probation officer had stated that if one of his officers recommended any form of custodial sentence in his report to the court, he would be subject to disciplinary procedure. I was greatly relieved when that ceased with the change in the role of the probation service.
How could magistrates have faith in a report when they knew that officers were not allowed to express their real views? I believe that that was wrong. I have seen in court distraught parents who are unable to cope with an errant child, searching for a new avenue of control. In many communities there is a minority of hard-bitten young criminals on whom existing penalties have no effect. That hard core of persistent young offenders is responsible for a large number of crimes. Indeed, we have heard this evening from my noble friend the Minister and other noble Lords about episodes where hundreds of offences have been committed by just one juvenile.
It is no good just wringing our hands and turning to policies which have failed to have any effect on such offenders. Certainly, it is no good sending them and their social workers on safaris and other holidays abroad. No wonder there was outrage when that became public knowledge. What a message to send out to Britain's youth! It is unbelievable. People have to be protected from these criminals and it is for that reason that I welcome the proposed custodial sentence—the secure training order.
I have listened to and read carefully the counter arguments: that more use should be made of existing local authority secure accommodation instead of building the new centres. I believe that there are a number of reasons why this is ill-advised. First, I think that it would be wrong to mix hardened young criminals with children who may be disturbed or may have been abused. Mixing with criminals would only add to their problems. Secondly, some social services departments have a poor record of looking after young offenders. Some local authorities have no secure accommodation. In fact there is none in my own court's area.
The proposed secure training centres will concentrate on providing a more challenging regime with a strong emphasis on training and education. The secure training order will fill a very important gap in the criminal justice system.
§ Baroness David
My Lords, I am sorry to interrupt the noble Baroness. Can she tell me where the Bill says anything about the young people in the secure training units receiving any education?
§ Baroness Seccombe
My Lords, it has been stated by the Government that it is the intention to have developed training and education within the secure training unit.
§ Baroness Seccombe
My Lords, it has been stated by the Government; and that is what is proposed.
Whether the sentence is the minimum of six months or up to the maximum sentence of two years, half will be spent in the centre and half under close supervision in the community. I believe that these orders will provide an intensive opportunity to change a young person's delinquent behaviour. I know that some of your Lordships will not agree with me and probably think that I am hard hearted and lacking compassion. I am certainly not a hanger and flogger and I hate the occasions when we have to deprive someone of their liberty, but sometimes that has to be done. It is because I feel so strongly that I have to say that we do not serve these young people well if we allow them to continue in their current and errant way of life. In fact, I feel that we let them down completely and probably ruin their lives.
There have been calls from the public, magistrates and the police, and I was pleased to hear a senior probation officer on radio last week supporting the proposal. The measure passed in this House and another place would give the courts greater powers. That is what people want; and I hope and trust your Lordships' House will give it support.
§ 10.32 p.m.
§ Lord Haskel
My Lords, the hour is late and I intend to deal with only one matter. As my noble friend Lord McIntosh said, Clause 138 amends the 1990 Human Fertilisation and Embryology Act and is a catch-all clause to stop the use of foetal tissue in fertility treatment. Its intention, apparently, is to remove any possible commercial pressure on women to provide this material. I believe that many noble Lords will join me in my feelings of surprise that this clause is in a Bill dealing with criminal justice and public order. I understand that the provision was put into the Bill unnoticed, in the small hours of the morning in another place when only a handful of Members were present.
This is a complex, sensitive and emotional issue and a most inappropriate matter for a catch-all phrase in a criminal justice Bill. It is a new field of medical research and the use of eggs from foetuses for treating patients will not be possible for many years. But this research could meet the needs of many infertile couples and increase our understanding of the causes of infertility and birth defects. It also has implications for the studies of new avenues for treating many diseases from heart disease to diabetes. Therefore your Lordships will realise that there are important scientific, moral, legal and ethical aspects regarding the use of foetal tissue.
It is because of the complicated and sensitive nature of this matter that the Government quite rightly set up the Human Fertilisation and Embryology Authority under the distinguished chairmanship of Professor Sir Colin Campbell. Represented on the authority are 488 technical and scientific interests, religious interests and moral and ethical interests thus enabling the authority to look carefully at every aspect of embryology research. Meanwhile there are stringent laws and regulations governing abortion and research which stop any trade in foetal tissue and at the same time the authority is responsible for licensing and inspecting fertility clinics and research centres.
The authority is the first of its kind in the world and its views and decisions are widely respected both here and overseas. The authority published its public consultation document in January this year and the consultation period is due to end in mid-July. It has had open meetings with doctors, scientists and people interested in the ethical aspects of embryology and is currently considering nearly 10,000 responses that it has received. The approval by your Lordships of Clause 138 will by-pass all this consultation and will be an affront to those people who have made considered responses. It will bring the Human Fertilisation and Embryology Authority into contempt and I think it will undermine its work. Britain is currently at the forefront in this new research and an affront to the authority will probably send some of our leading scientists overseas.
I therefore suggest that Clause 138 be removed from the Bill and the matter be left to the Human Fertilisation and Embryology Authority and its current consultation process. It was set up by the Government specifically to deal with this matter; it is well equipped to do so. Let it do its job.
§ 10.36 p.m.
§ Lord Ashbourne
My Lords, fear of crime is one of the most prevalent anxieties of our society today. That fear is not without cause, given the range of criminal activities from burglaries to car theft and more violent crimes. I therefore welcome the bulk of the measures in this Bill designed to address more effectively the scourge of widespread crime.
I have always had a particular concern about the impact that the media—especially television and videos —can have on children in encouraging them to imitate violence or participate in early criminal activity. I therefore give a particular welcome to the proposals in Part VII of the Bill on obscenity, pornography and videos, and look forward to seeing the promised government amendments on videos which may be harmful to children. I am delighted that the Home Office has responded to the proper public concern on this issue.
I feel, however, that the other place was out of touch both with public feeling and moral concern when it voted to include Clause 139 in the Bill, lowering from 21 to 18 the age at which homosexual acts are lawful. I believe this is a backward step in the protection of young people and this, of course, includes handicapped young people, just as Part VII of the Bill is a forward step. I give notice that I would support any amendment to the Bill which re-establishes 21 as the so-called homosexual age of consent.
There is one other matter which puzzles me. I myself am not a lawyer and I have no legal expertise whatsoever, but it seems to me as a complete amateur that Clauses 30 and 31 remove a vital principle of law 489 in that the alleged victim or accomplice could make an accusation with no corroborating evidence and have an innocent man convicted. I may have got it wrong because I am not a legal expert at all, but I ask the noble and learned Lord, Lord Fraser of Carmyllie, when he winds up, to correct me if I have read the clause wrong. If I have misled the House in any way I must apologise, but I felt I should be failing in my duty if I did not tell the House about what looks to me, frankly, to be an error.
I found myself this evening agreeing with the noble Lord, Lord McIntosh of Haringey in his opening address. Perhaps I may say to the House that this does not happen very often. He said that he felt that the causes of the high rate of crime in this country should be analysed. I wholeheartedly support that proposal. I ask the noble and learned Lord, when he winds up, to tell us whether the causes of the very high crime rate in this country have been analysed; and if so, what conclusion the Government have come to. If it has not been analysed, perhaps I may mention one very small charity, called Schools Outreach, which does tremendous work in this regard. It puts highly trained workers into schools at the request of the headmaster. The worker gets alongside the troublesome people in the school. Results have been extremely promising. The truancy situation has improved enormously. One can say with complete confidence that our prisons are less full today than they would be if Schools Outreach did not exist. I ask the Government to investigate Schools Outreach and see whether they share my assessment of this charity. If they do, I suggest that they give it some support. In my judgment it does tremendously good work.
I believe that the people of this country are sick and tired of hearing that the criminal has got off lightly and the victim has suffered greatly. I agree with the noble Lord, Lord Kenyon, who said that we must have deterrents which effectively deter. This Bill goes a long way, though not so far as I would like, to meeting that criticism.
Finally, I thank the noble Lord, Lord Renton, for telling us, in a balanced and authoritative speech, that out of 1,000 deaths from AIDS that occurred in the UK in the year ending 31st December 1993, over 70 per cent. occurred among homosexual men. Noble Lords will of course judge for themselves, but it seems to me that that demonstrates beyond reasonable doubt that there is a strong link between AIDS and homosexual men. It may be that noble Lords feel that Members in another place did not show the wisdom which we normally expect from them when they voted to lower the so-called age of homosexual consent.
Finally, with the few reservations that I have mentioned, I commend the Bill to your Lordships.
§ 10.42 p.m.
§ Lord Mancroft
My Lords, nobody can be in any doubt that one of the matters that is of greatest concern to many people in Britain today is the increasing lawlessness in our society. More than that, there is a widespread feeling that the mechanisms which all 490 civilised societies have to deal with such problems, of which Britain has long prided itself on having one of the best, are not working as they should.
Whatever the causes of the increased lawlessness—and those causes are clearly not unique to Britain—it is to the apparent inability of the forces of law and order, the police and the courts, to contain them that we have turned our attention today.
The criminal justice system will always be one of fine balance, as my noble friend said when he so eloquently opened this debate. But it cannot be a coincidence that the increased liberalisation of that system that has taken place during most of my lifetime has been matched almost step for step by the breakdown of law and order. Although some noble Lords will have, and indeed have already expressed, concern at some aspects of the Bi11 that is before us today, and have criticised the Government for introducing them, it is against a background of enormous public disquiet that the Government have brought this legislation forward. Your Lordships will rightly earn the anger of the British people if anything that we do during the passage of this Bill prevents the Government from giving to our police and courts the ammunition that they need to fire in the fight against crime.
We are all too aware that those who commit crime: currently do so in the knowledge that the chances of their being caught are slim; that even if they are caught. the scales of justice are weighted heavily in favour of their escaping conviction; and that in the unlikely event that they are convicted the sentence that is handed out to them will be meagre enough and may even then bear little relation to the time that they will serve.
The lawyers among your Lordships are naturally concerned about any measure that might prejudice the rights of defendants, which rights are a cherished part of our legal system. But it is important to be objective in assessing whether those same rights are being abused to the detriment of the law-abiding majority. While lawyers may feel that their special knowledge gives them an edge over the rest of us in making that assessment, they should remember that, because they preside over that same system as is so manifestly failing us all, their conclusion may not always be as objective as it might otherwise be.
The rise in crime has predominantly been an urban problem. But although, like all your Lordships, I am worried about all areas of crime, it is with the crime that spills over into our countryside that I shall concern myself tonight. Within the Bill before us there are two new provisions to deal with the disruption of country sports. There has been much confusing propaganda put about by animal rights groups. It is therefore important that noble Lords should be quite clear about that area of the Bill.
For many years there has been a genuine objection by a very small minority in our community to sports which involve the taking of animal, bird and fish life. Although I and many others who both deeply understand and love that part of our rural sporting tradition think that that objection is misguided, nevertheless we respect that view and those who hold it.
491 But in recent years, reasoned debate and peaceful protest have given way to abuse, intimidation and violence on a scale not seen before in the British countryside. Men and women of all ages, as well as children, have routinely been subjected to a stream of abuse and threats. Increasing numbers have been physically attacked and injured. Over the past few years, large groups, on occasion numbering hundreds of people, sometimes clad in paramilitary uniforms, wearing balaclavas to hide their identities and carrying an assortment of weapons, have arrived in the countryside, usually from towns and cities, intent on violence and disorder. Within the past three years such attacks have spread to shooting parties and fishing. Last year the activities of those people was a major contributory factor in the debacle of the Grand National, resulting, apart from anything else, in huge financial loss.
There must be no misunderstanding about the severity of the problem. We are not talking about a few yobbos; we are talking about large gangs which are well organised and well funded. The same faces as have been photographed attacking hunts were seen in Trafalgar Square during the poll tax riots and in the East End of London at the forefront of last year's race riots. Animal rights violence is where the Far Left of British politics meets the Hard Right. Two young men have already died from that violence. Property and vehicles have been destroyed. If any noble Lords should mistakenly believe that animal rights has anything to do with animal welfare, perhaps I may remind them that one of those people was recently convicted of beating a foxhound to death with a hammer.
The Government's decision to legislate on this subject has not been taken lightly or easily. Those of us who are involved in all sorts of country sports have worked closely with the police to seek a solution. Up to now the police believed that they had the necessary powers to deal with those problems. But the problems have now escalated to the extent where the Association of Chief Police Officers has reluctantly concluded that the existing law does not have the provisions within it required to deal with that level of disorder.
The provisions in Clauses 63 and 64 of the Bill create two new offences. Clause 63 creates the substantive offence of aggravated trespass. It will be an offence for a trespasser to do something which is intended to disrupt a lawful activity or to intimidate somebody else into ceasing a lawful activity. In Clause 64 the police will be given a new power to direct trespassers to leave private land if they believe that those trespassers will seek to disrupt or prevent a lawful activity on that land.
The measures do not apply only to country sports. They apply to the disruption of any lawful activity. As such, they are aimed not solely, as has been implied, at hunt saboteurs, but at anyone who attempts to disrupt any lawful activity, which may include angling, racing or even football. Peaceful protest will not be outlawed. Indeed, peaceful protesters may continue to protest as their action would lack the intention to disrupt. Disruption must be intentional. Because accidental 492 disruption following a trespass will not be an offence, climbers and ramblers need have no fear that they will be inadvertently caught.
The new offences are not a verdict on country sports; nor should they be seen as such. But noble Lords who may have been encouraged to vote against them should be quite clear what is at stake. At present, groups who do not agree with other people's pastimes have chosen to step outside the law and use violence as a method of getting their way. If Parliament were to sanction that behaviour, then we might as well all pack up and go home, for that is the route to anarchy.
Over 5 million people participate in country sports, and many millions follow horse racing. Those people have patiently put up with this violence for too long, trusting to the police for their protection. The police have now sought further powers and the Government have responded. The Government will earn the gratitude of all country people for that response, while those who oppose these measures will find that their opposition will not easily be forgotten.
What has happened in the countryside is merely a microcosm of what has happened throughout the whole country. Although your Lordships will want to look carefully at the details of the Bill as it progresses through its stages in your Lordships' House, and may have understandable concerns that the measures proposed maintain the correct balance, it is as well to remember that the British people are heartily sick of the current levels of crime and will not look kindly on those who seek to dilute the Government's commendable resolve.
I am pleased this evening to be able to add my support to the Bill and can confirm the gratitude of many thousands of ordinary people in the countryside that the Government have had the courage to take the necessary steps to redress the balance of our criminal justice system in favour of the victims of crime.
§ 10.51 p.m.
§ Viscount Craigavon
My Lords, at this time of night I should like to make some brief comments on the single Clause 138, which relates to the subject of embryos. Perhaps I may say that I am extremely sorry that my noble friend Lord Henderson of Brompton is not able to be here this evening to give us his valuable knowledge on this subject and, indeed, on other matters in the Bill.
Much of what I wanted to say was ably and comprehensively said three speeches ago by the noble Lord, Lord Haskel. As has been said, the clause was not in the Bill as first published. It was put in as a new clause by a Conservative Back-Bencher in the final stages of the Bill in another place, after midnight and with no vote. This is a prime case for this Chamber to closely examine the implications of the clause in Committee.
I wish to say about this clause in particular what the noble Lord, Lord Wigoder, said some hours ago about the Bill; namely, that we should be able to deal with it in a non-party spirit. For the reasons given by the noble Lord, Lord Haskel, it is unfortunate that we shall be debating embryos in the context of the criminal justice Bill. The haste of the introduction of the clause is 493 inexplicable for two reasons. First, it is generally agreed that any practical use of the procedure being outlawed by the Bill is at least 10 years away; secondly, the clause significantly pre-ernpts the massive consultation exercise currently being undertaken by the HFEA—the Human Fertilisation and Embryology Authority—exactly covering the issues before us.
As the noble Lord, Lord Haskel, said, I understand that the HFEA sent out 20,000 copies of a public consultation document entitled Donated Ovarian Tissue in Embryo Research & Assisted Conception. Replies and comments from nearly 10,000 respondents were received and the deadline was extended until July. The HFEA is an extremely responsible body and explicitly encouraged genuine public debate on this extremely difficult subject.
I know that outside the House many medical representative bodies have already expressed their concerns about this clause; and in this House I know that Members of all parties have indicated that they hope that some way may be found constructively to amend the clause, and that includes distinguished medical and scientific Members on the Cross-Benches.
Finally, given the origin and circumstances of the clause, I hope that the Government will be prepared to encourage all your Lordships genuinely to listen to the arguments advanced at the next stages of the Bill.
§ 10.54 p.m.
§ Lord Byron
My Lords, I have a sneaking suspicion that your Lordships will not wish to hear, at this time of night, a further treatise on the right to silence; indeed, your Lordships may well feel that rather than embark upon that, I should exercise the right to silence myself and sit down immediately. I have therefore torn up what I intended to say on the right to silence, and say only this. I hope that when the matter goes into Committee the Government will consider the safeguards proposed by the Bar Council, albeit that the Bar Council regards hem as very much a fall-back position. I believe that those safeguards would substantially improve the Bill and reassure people who, like myself, have considerable reservations about the problems of the right to silence or, one might say, the obligation to talk having to be exercised at a stage prior to formal interview.
Neither of the two matters to which I should like to refer is at present contained on the face of the Bill. In saying that, I should not wish it to be thought that I am generally hostile to the Bill. In particular, in regard to Part I, despite criticisms which have been levied against it, I cannot see how any responsible government could have failed to bring in some such measure to deal with persistent young offenders, even though the cost seems very high.
The first matter on which I should like to touch relates to the recent amendments to the criminal injuries compensation scheme. On 2nd March I sat in your Lordships' House listening to a debate on an Unstarred Question asked by the noble and learned Lord, Lord Ackner. Although it was late in the evening there was a long list of distinguished speakers, and looking down the list I tried to spot who, other than the noble and learned Lord, Lord Fraser, answering for the 494 Government, might have something to say in support of the proposals. In the event, not a single speaker, lawyer or non-lawyer, for the Government, the Opposition or the Cross Benches had anything to say in favour of the proposals.
In that debate the noble and learned Lord, Lord Ackner—I hope he will not object to my quoting him tonight—said that the changes were a cost cutting exercise and that the Government were guilty of hypocrisy in suggesting otherwise. He said that the scheme was grossly unfair in that those who suffer the most serious injuries and the more substantial losses will receive only a fraction of the compensation which is now provided. He also said that the Government's proposal was an abuse of power in that provisions were contained in the Criminal Justice Act 1988 to put the scheme on a statutory footing and those provisions have never been brought into effect.
I would not wish to say anything about the constitutional position or the legality of those measures. But sitting through that debate it struck me that the arguments against the so-called tariff system were so overwhelming that it was inconceivable that the Government would not think again. Alas, unless there has been some recent development of which I am unaware, the new tariff scheme is now in operation, albeit that there will be a challenge to it in the courts, which is a highly undesirable state of affairs. I also recently learnt that the Northern Ireland scheme is a statutory scheme and presumably is still in effect, although, no doubt, there may be some amendment to it. On that point, I am not entirely clear.
The reason the issue is germane to the present Bill is that the Government said in a White Paper that the provisions of the 1988 Act would be repealed when a suitable legislative opportunity presented itself. Such an opportunity has indeed presented itself in the shape of the present Bill, but for some reason the Government have not seen fit to include in it measures repealing Sections 108 to 117 of the Criminal Justice Act 1988.
I would have a great deal of sympathy for the Government if they said that the present scheme had become too expensive and needed to be looked at again. Governments must always be concerned with keeping expenditure under control; and this Government have a very good record in that respect. My answer, however, would have been that it is the policy of this Government, and, I believe, the party which I support, to look after the victims of crime.
Indeed, my noble friend Lord Ferrers, who opened the debate for the Government, said in his peroration that it was to protect the innocent from the activities of criminals that this measure was particularly directed. I suggest that compensating the victims of crime, in the way they have been compensated for the past 30 years was also an important consideration. Therefore, I invite the Government to take the opportunity to bring forward an amendment to repeal the relevant sections of the 1988 Act and to allow this matter to receive the due consideration of Parliament.
There is one other matter I would like to raise very briefly at this stage. It concerns the Environmental Protection Act 1990. In that year Parliament decided to 495 retain the criminal remedies in proceedings by persons aggrieved by statutory nuisances, with fines and compensation being payable. In another place an amendment was moved to improve the effectiveness of Section 82. That section is an effective remedy and usually much quicker than civil proceedings in county courts under other legislation. For some it is the only remedy and legal aid is not available for such proceedings.
I understand that meetings are taking place between the Law Society and officials from the Lord Chancellor's Department and the Department of the Environment. I understand that there are no policy objections to the proposed amendments but that some changes are required to the drafting proposed in another place. I therefore hope very much that the Government will be able to bring forward an amendment in due time to be considered in this Bill.
There is a great deal which is good in the Bill, but we should remember that its Short Title is the Criminal Justice and Public Order Bill. It was once said by Martin Luther King (although I do not believe that he was the first person to say it) about his supporters rather than his opponents, that they loved order more than justice. I hope that when we come to consider this matter in Committee we shall be very careful that we do not let this Bill err too far towards order and away from justice.
§ 11.2 p.m.
§ Lord Pearson of Rannoch
My Lords, having the honour to be the last of 41 speakers before the winding-up speeches, I shall attempt to be among the briefest. To this end, and at this hour of the night, I trust that my general welcome and support for the Bill's aims can be taken as read.
I have two interests to declare and to represent. The first is as a middle-aged businessman who has the temerity to drive a BMW motor car in central London. The second is as the owner of a Highland deer forest. In the first capacity I fear that Clause 55(5) of the Bill may make my life, and that of others like me, even more difficult than it has recently become by allowing the police to carry out more random breath tests than they do already.
I am aware that random breath tests are not supposed to be permitted under Section 6 of the Road Traffic Act 1988, but they are in effect being administered ever more frequently. The two most favoured covers for this particular activity appear to be the ostensible security check and the purported traffic offence. Of these, the latter is of course more difficult to criticise, but road blocks which single out rather smart BMWs and other similar cars for inspection, while letting dilapidated old vans continue unexamined, seem to me to cast doubt on the object of the exercise.
But be all that as it may, can my noble friend the Minister assure us that Clause 55(5), which I understand was inserted in another place, will not be used by the police to force the breathalyser on some wretched driver, be it of a BMW or anything else, just because he happens to be driving in an area covered by the proposed clause?
496 As to the second capacity in which I speak tonight (that of an owner and indeed occupier of land in the Scottish Highlands) I feel sure that my noble friend is aware of the disquiet which the new offence of aggravated trespass in Clause 63 of the Bill is causing to many who walk and climb the hills. In brief, they fear that owners and occupiers of land will be able to curtail their enjoyment of the hills by claiming that they are wilfully disrupting a lawful activity such as stalking; indeed, perhaps particularly stalking.
My reading of the Bill suggests that this fear may be misplaced, because the owner or occupier would appear to have to show, presumably to the satisfaction of the local police and the procurator fiscal, that the disruption or obstruction was intentional before a prosecution could be launched. But I would be very grateful if my noble friend could confirm this understanding for the record, if it is indeed correct, and thus generally set at rest the minds of all those who enjoy our magnificent Highland heritage and who share it responsibly with those who make their living on the land in question.
I trust your Lordships will not think these two requests for clarification too esoteric at this time of night. At least I trust you will agree that they have been briefly put.
§ 11.6 p.m.
§ Baroness Seear
My Lords, at this time of night—I echo the noble Lord, Lord Pearson, for once—you will not want a long wind-up speech from these Benches, and I do not intend to make such a speech. It is quite clear from the debate we have had this afternoon that this Bill is the kind of Bill which will show the House of Lords at its best and its most useful. From all sides of the House there has come support for some aspects and criticism for other aspects of the Bill. It is when this arises that the various elements in the House and its specialised knowledge can be brought to bear greatly to improve legislation.
The debate this evening has ranged in the main around two major issues. Others have of course been raised which are of particular importance to particular groups. I was very glad to hear my noble friend Lord Avebury—the father of gypsy legislation in another place—still protecting the gypsy case. Certainly it is going to need protection. That is something which has had some support from various Members on other Benches, although others may find reasons to criticise it. There has also been the question of trespass, which has been raised by some Members but which again will call for debates from many other Members, and not exclusively from any one Bench.
However, the two issues which have certainly dominated the debate tonight have been the issue of the right to silence and the issue of the imprisonment of young offenders. On the question of the right to silence, there seemed to be three views: there are those who consider that the right to silence should remain exactly as it is and not be interfered with at any stage of the process; those who consider that it is entirely right to abandon the right to silence entirely; and those who have taken the line that the right to silence must certainly be maintained until the case has been fully 497 discussed in the courts but that, when it is in the court, with all the safeguards that the court can provide, then changes can legitimately be made that cannot be made at the earlier stage when the police have just arrested an individual and are carrying him to the police station or are questioning him in the police station.
I do not know at the end of the day which of those three views is likely to be reflected in the legislation, but I am quite certain there will be amendments along those lines and that discussion will rage very strongly on this particular issue. I view with very considerable suspicion any attempt to tamper with the right to silence, though I have been most interested in what has been said, particularly by the noble Lord, Lord Alexander, whose experience in this area is unquestionably very great, and also of course by the noble Viscount, Lord Runciman, who drew attention to the evidence in his most distinguished Royal Commission report.
The other point which has caused a great deal of interest and controversy this evening has been the issue of how to deal with the serious young offender of the age of 12 to 16 and the suggestion in the Bill that secure accommodation—imprisonment it is in reality, whatever words are used—should be provided for these youngsters. There have been those from all around the House who have supported it and those—I am one of them—who have been extremely critical of that proposal.
As many speakers have pointed out, the number of offences committed by juveniles has gone down, not up, and there is good research to show that the number of hard core offenders of that age is very small indeed. It is also evident from research that a great many of those who do offend at a very young age are greatly influenced by social conditions. I know that in some quarters of your Lordships' House it is the fashion now to sneer at references to adverse social and personal conditions which may contribute to offending. None the less, it remains a fact that a great many of those youngsters—there is good research to support this—have no proper home base.
There are those who say that if such youngsters are taken away from home they should be kept near their families. Yes, indeed, if they have a family to be kept near, but many of them have no families, and in some cases when they have families it is undoubtedly the so-called family which has precipitated the circumstances in which the youngsters find themselves as offenders.
I find it extraordinarily difficult to believe that locking them up in groups of 40 will lead to any kind of reform of such youngsters. Surely we all know that what has an effect on young offenders—I suspect, offenders of any age—is the development of a close personal relationship with someone who can detect some sign of growth and development, some hope for the youngster if properly developed. That depends very much on good personal relationships with the person who can guide and help him or her. The kind of supervision that can provide that help for small numbers of offenders is much more likely to be effective than putting 40 offenders of different ages all together in conditions in 498 which many of those who have been the least serious offenders are likely to be bullied and influenced by the toughest and most dangerous.
I should have thought that that was an extremely dangerous and unnecessarily expensive way of dealing with what is a real problem. That is not the way to deal with it. There are already organisations throughout the country which can provide help. For example, SOVA, of which I have the honour to be president provides help on an individual volunteer basis to families in which people are in trouble with the police. It is that kind of personal contact, not locking up people, which is likely in the end to have the greatest effect. There is criticism of the proposal from all around the House. I support strongly the view put forward by the noble Baroness, Lady Faithfull, who said that, in so far as it is necessary to lock up people, there is local authority accommodation ready and available. Why on earth spend £30 million? The Government are always talking about value for money, and spending money in the way that will achieve the best results. There can be no Member of your Lordships' House who cannot think of better ways of spending that £30 million to cut back crime than building unnecessary and extremely expensive institutions whose success is likely to be—on the prediction of all those people who know about this matter—slight, even if their effect is not negative.
Having looked at some of the major issues that have been raised in the debate, I have to say that I agree with the noble Lord, Lord McIntosh, who raised this point in a speech which seems a long time ago—it is not quite yesterday, but it jolly nearly is—when he said that this is not the Bill that we should be discussing. We cannot have mammoth criminal justice Bills year after year—and this is a mammoth Bill. It weighs no less than 444 grammes—your Lordships will see how up-to-date I am. We do not need this Bill, which deals with certain problems in a piecemeal way. We need a criminal justice Bill which will deal with the basic causes of crime and the way to cope with the crime that arises from those causes—something which this Bill does not deal with.
I cannot understand why, when the Government have a good idea—and from time to time they do—they are so frightened at the sight of it that they run away. Only two years ago we were informed by the Government, and in White Papers, that they were in favour of having, fewer people sent to prison. That was a very bright idea. It was fairly obvious to many of us and we were extremely pleased that it had at last penetrated the mind of the Government, who are responsible for these things. We all cheered and were delighted when the numbers of people going into custody fell.
At last the Government did the right thing by setting up a Royal Commission. For a long time some of us had been saying that we would like to see the return of a. Royal Commission instead of the Green Papers of anonymous authorship based on unidentifiable research with which we have been pestered during the past 10 years. We were delighted that there was to be a Royal Commission and that people who knew about the subject would take evidence from other people who knew something about it and would produce a 499 considered report. We cheered when the noble Viscount, Lord Runciman, was asked to chair it and we cheered more loudly when his report was published. Of course we thought that the Government would be influenced by it. But they have an entrenched dislike of anyone who knows anything about a subject. They have a marked preference for listening to the people who do not claim to be expert rather than to those who have taken trouble to become expert and have expressed their views in the form of a Royal Commission.
We were deeply disappointed because we thought that the Government had been converted and influenced by publications such as the Woolf Report, by a great deal of propaganda and by some of their own research from, of all places, the Home Office. We thought that they had changed but what do we find? They have been frightened by their own avant-garde approach which they adopted a couple of years ago, and they have gone into reverse with this Bill.
We need a criminal justice Bill which goes to the heart of the trouble; the reasons why people turn to crime. We know what some of those reasons are and no more research is necessary. We know that it will take a long time to get some of it right but the problem is to be found in the levels of unemployment and in the fact that many 16 to 18 year-olds have no money and nothing to do with their time. The problem relates in particular to young men—this is not a sexist remark—who have no money and little to do. They are almost certain to get in to trouble of some kind or another. We know that it has to do with the inadequacies of the education system and that it can be helped by providing better education at an earlier age. We know that it can be helped by providing better housing. Most of us have never had to live in overcrowded conditions. Families are fine things in theory but I am never surprised to learn that when members cross each other some of the worst crimes are committed inside families. Crowded housing conditions are likely to cause the kind of trouble that we are encountering.
So we could pull together the knowledge that we already have in respect of why there is so much crime. We could have a Bill which would deal with the roots of the problem and not the symptoms, which is all that this Bill does.
§ 11.20 p.m.
§ Lord Irvine of Lairg
My Lords, at this hour, I shall not attempt to sum up on every issue. I leave that task to the noble and learned Lord, Lord Fraser of Carmyllie, whose isolation in our recent debate on criminal injuries compensation has just been alluded to by the noble Lord, Lord Byron.
I shall focus on some key issues. First, we on these Benches pledge to the noble Baroness, Lady Faithfull, our support against the establishment of child gaols, called secure training centres. In most of Europe children under the age of 14 are below the age of criminal responsibility. There it is the care system and not the criminal justice system which deals with very young offenders. The concept of imprisoning children aged 12 to 14 in child gaols, remote from family and 500 community, is so retrograde that the conscience and wisdom of this House, after full discussion in Committee, will surely say no.
I have three specific questions which I invite the noble and learned Lord to answer in his reply. Under Clause 1(5) (b) a court is not to make a secure training order unless it is satisfied that the offender has been convicted of three or more imprisonable offences. The noble Lord, Lord Acton, drew attention to that provision. Does that mean three offences each committed on a separate occasion or is it intended that if three distinct imprisonable offences are committed on the same occasion, the 12 year-old is eligible for a secure training order? That is a simple question. Presumably the Government know what they intend in bringing forward this provision. If the answer is yes, do three imprisonable offences on a single occasion really qualify as persistent juvenile offending of which the former Home Secretary spoke when heralding the provision and of which the noble Earl spoke in opening the debate?
My second question is whether the five proposed secure training centres are likely to be sited within existing prisons.
Thirdly, if a place in a secure training centre is not available a court may, under Clause 2(2) (a), commit the offender to such place as the Secretary of State may direct. Without any court intervention whatever, the Secretary of State may transfer the child from a secure training centre to such a place. Therefore, my third question is as to what kind of place that may be. Will it be an adult penal establishment or even a police cell?
The noble Baroness, Lady Faithfull, and my noble friend Lady David, most notably, have listed the objections to those child gaols. Cumulatively, they are compelling. They will remove children far from family and community, heightening their sense of isolation and rejection. They will be branded criminals and the regime will be essentially punitive.
The right place for such children is as close as possible to their homes and communities in local authority secure units staffed by workers trained to deal with very difficult young people. We regard that proposal not as a return to Victorian values, but as a return to pre-Victorian values when commercial companies ran child gaols for profit.
Many of your Lordships concentrated on the right to silence. Before I turn to that, perhaps I may make this short point. The Runciman commission was set up because of a long line of miscarriages of justice which have brought our criminal justice system into public disrepute. The commission recommended that the Home Secretary's power to refer cases to the Court of Appeal should be removed and a new independent authority should be set up.
The Home Office's discussion paper says that it accepts the Royal Commission's recommendation but there is nothing in this Bill, which enjoys its own very substantial place in this legislative programme. I regret to say that I am not as sanguine as the noble Viscount, Lord Runciman. There is no guarantee that space will be found in the next or any future legislative programme for the implementation of that recommendation unless 501 we hear it from the noble and learned Lord, Lord Fraser, this evening, which I hope we may. For the present, we are minded to table an amendment to provide for the establishment of such an authority here and now.
The supreme irony for the present is that the commission's advice that an independent authority to deal with miscarriages of justice be set up is not being implemented, whereas its recommendation that the right to silence be preserved is rejected, with the risks that that involves of increasing miscarriages of justice; indeed, all the risks to which my noble friend Lady Mallalieu referred and which the noble Viscount, Lord Runciman, trenchantly expressed.
Perhaps I may start with the basic point about the abolition of the right to silence. It is argued that the changes in the Bill do not abolish the right to silence but merely introduce the right to comment adversely on its exercise. I find that a rather and proposition. At present in the generality of cases there is a right to silence which is absolute. However, the right to silence is no longer absolute but it is eroded if prejudice can result from its exercise. It is too obvious that a real risk of adverse comment imposes a pressure to speak. The Bill obviously erodes the right to silence. The removal of the inability of anyone to comment adversely on silence changes the character of the right: in place of a risk-free right to silence will be pressure to yield to questioning. I would also add that the burden of proof of guilt will not remain as it was before because when the accused opts for silence there will then in practice be a burden on him to give reasons for his silence.
Next, the Government are rejecting the considered judgment of two Royal Commissions. They are claiming support from the minority on the Runciman Commission. But that minority provided no support for the abolition of a citizen's right to silence at every stage of the criminal process, nor for any abolition without additional safeguards being in place.
The Bill provides that the right to silence is lost at any time before the suspect is charged—say, when there is questioning by a constable in the street or by a store detective in a supermarket. Therefore, it is simply wrong to suggest that PACE will regulate every circumstance where the right to silence is lost. Nor are any additional safeguards to be provided at the police station. It is not even provided that suspects should be told broadly what is the potential charge against them, or that they should have access to proper legal advice, or that compliance with PACE should be a pre-condition of admissibility.
Further, what is the case for making those fundamental changes in the first place? The only justification can be that a greater prospect of convicting the guilty outweighs a greater risk of convicting the innocent. Let us take the facts. The research figures of those who exercise the right of silence are not constant, but 10 per cent. would be at the higher end. Research for the 1993 Crown Court Study showed that 50 per cent. of all who did not speak in the police station were convicted. That is very close to the Crown Court conviction rate of 43 per cent. for all defendants. That suggests that silence gives no significant advantage if a jury hears convincing evidence. The same research 502 showed that in about 5 per cent. of cases there were ambush defences which in the study undertaken always failed.
If the question is why should not someone caught in suspicious circumstances have to explain himself, I suggest that the answer is fourfold: they usually do, in about 90 per cent. of cases; if they do not, they have a 50–50 chance of conviction - much the same as anyone else; and if an ambush defence is run it almost always fails. However, the really important point, and the other side of the equation, is fairness to the suspect.
The risk of conviction of the innocent will increase with those changes because of pressure to submit to police questioning. Notorious miscarriages of justice have resulted from alleged admissions which subsequently proved to be untrue. The confused, the inarticulate, the weak and the inadequate are prone to suggestion and bullying; and they need the right to silence.
We say that the right to silence should be left unchanged. But as an alternative we shall put down a range of amendments to build safeguards into the proposed system. Examples are that the right to silence should continue completely unchanged outside the police station; and if it is to cease in the police station that should be only if the PACE safeguards apply. Questioning should take place only when the accused i s protected by a tape recording of questions and hi s answers to them; and only when he has had the opportunity of legal advice.
I should add that we see considerable merit in the Royal Commission's recommendation 83 to which the noble Viscount, Lord Runciman referred. These Benches would be disposed to support an amendment implementing that recommendation.
Next I come to the rising tide of racism in this country and the opportunity that the Bill gives to combat it. There are three ways. The first is by legislating against racially motivated violence and harassment. We welcome the intimation from the noble Earl that amendments are to be brought forward to provide tougher penalties for persistent racial harassment. But we believe that the time is ripe to legislate against racial violence and harassment and we shall be tabling a suitable amendment. Secondly, the dissemination of racist and perhaps in particular anti-semitic hate literature is growing, and we shall be tabling amendments to strengthen the law in that regard. Finally, we think the time has come to create a new offence of group vilification. We shall be tabling an amendment in that regard but I leave any detailed explanation to the Committee stage.
I move from the Government's unwillingness to provide special protection for minorities who require it to their willingness to persecute—and I use that word advisedly—an even more vulnerable minority. I refer to Clauses 72 to 75 of the Bill which deal with gypsies and New Age travellers. The right reverend Prelate the Bishop of Lichfield had compassionate and realistic observations to make on that subject. I agree with the noble Lord, Lord Avebury, that everyone was astounded when the Government's proposals were announced. I was pleased to hear the noble Lord, Lord Kenyon—with 503 the greater part of whose speech I am sure he will forgive me if I say I did not agree—express his grave doubts, based on his knowledge of the problem about the road down which the Government propose to go.
The provisions deal with gypsies and New Age travellers. The clauses represent a high watermark of repressiveness without any countervailing social policy and give the lie, as the noble Lord, Lord Avebury said, to the Government's claim to be the party of family unity. At one stroke the provisions destroy the tradition that non-conforming minorities are not to be persecuted. The duty of local authorities under the Caravan Sites Act 1968 to provide sites for caravans is to be repealed. At the same time removal from unauthorised sites is to be criminalised and exchequer grant for site construction is to be withdrawn totally. As the noble Lord, Lord Avebury, will well remember, the 1968 Act was passed with all-party support when tolerance and minimum common values still prevailed. Now we are set for a return to the days when many of those people could act lawfully only when they kept on the move. The Government's proposition that gypsies should apply for planning permission for sites that they should buy is nothing other than a sick joke. A large part of this ethnic group will be harried from pillar to post with nowhere to stay and no lawful option other than to remain on the move.
Instead of fashioning a civilised balance between the way of life of gypsies and their families on the one hand, and the proper interests and concerns of communities whom they affect on the other, the Government have elected for the easy route of repression of a minority with no political clout. We will expose those provisions for what they are and in great detail in Committee.
The Government have succeeded in losing even law and order as a stick for beating the Opposition. That is the sea change for which this Home Secretary's stewardship will be remembered. The country has seen through the party that calls itself the party of law and order. That is why Tony Blair's,tough on crime, tough on the causes of crime",has struck a winning chord in the country—a country which craves even-handedness and balance, in place of dogma.
The Bill is the work of one man, a Home Secretary on the run; a Home Secretary who, according to this morning's Independent, is running so hard that he has been driven to send a tough warning to this House not to tamper with any of the main planks of his Bill—a warning which we shall not heed.
This Bill has been called by the noble Lord, Lord Wigoder, a "hotch-potch" and by my noble friend Lord McIntosh a "ragbag". Both do it an injustice; the Bill has a unifying theme, it incorporates every unbalanced measure that will as much guarantee ecstasy at the Tory Party conference as rejection by the responsible. If the competition is in excess, the party opposite will, of course, win. The competition that we propose to win is in opposing many parts of this Bill on their merits and in the interests of the country.
§ 11.36 p.m.
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie)
My Lords, I am glad to have the opportunity to speak before midnight at the end of what has been an interesting and wide-ranging debate. Once again, the special strengths of the House have been demonstrated in a debate distinguished by contributions from eminent speakers showing a wide range of experience and expertise. It started with broad moral themes and dealt in some circumstances with great knowledge of particular problems that the Bill seeks to address.
There have been more than 40 speakers and I hope that I will be forgiven if I fail to respond to every point raised or mention every contribution, even of those who have had the courtesy and opportunity to stay here until this time. However, I must first join in the general compliments that have been paid to the two maiden speakers in the course of the debate. Rightly, the contribution of the noble and learned Lord, Lord Lowry, to the law has been highlighted. As a Scot perhaps I may say that, in the jurisdiction from which I come, that high regard for him is equally shared, coupled with the highest respect for his personal integrity and his courage.
Perhaps I may also congratulate the noble Earl, Lord Mar and Kellie, who similarly made his maiden speech. He spoke with a real background understanding of the problems of what goes on in prisons. I am grateful to him for the stress that he laid on the importance of encouraging young offenders and prisoners to address offending behaviour as a matter of fundamental importance. As Minister with responsibility for prisons in Scotland, I am grateful for the encouragement that he gave that attitudes which were once in place when he first joined the prison service have now passed.
There are 152 clauses in the Bill. By my calculation, having been here for most of the debate, the attention has focused principally on about 30 of those clauses. I believe that the noble Lord, Lord Wigoder, described it as a Bill which would do irreparable damage to the criminal law of this country. That contains within it a grain of exaggeration. There are clearly large numbers of clauses which were not referred to at all on which there is widespread support, not only in this House and another place, but in the country. I think that that might have been recognised. It would be unfortunate if it was thought that this House rejected in its entirety all that is contained within the Bill. There are a number of very desirable and important changes. There is one that has not been mentioned at all. I am bound to say that I am surprised that we have got to 1994, after nearly 300 years of union between Scotland and England, and have not managed until this Bill to put in place proper arrangements for cross-Border policing.
Perhaps I may deal with the major themes that have emerged from the contributions during the course of the debate. The first one—at the beginning of Part I—relates to secure training orders. The initiative that we have taken has been caricatured in a number of speeches as a reversion to policies that return to the failed "lock 'em up" approaches of the 1970s and 1980s.
505 I stress that there are three senses in which the STO attempts to build on what has been learnt from the past. First, there is a recognition of the need to target carefully those youngsters for whom detention is really necessary. Approved schools and even detention centres prior to 1982 admitted a wide range of youngsters many of whom could no doubt have been equally well, if not better, dealt with within the community. The secure training order will only be available if the strict statutory criteria are met. There must have been at least three convictions for imprisonable offences. The juvenile must already have been subject to a supervision order, and have either committed an offence while subject to it or be in breach of it. The offence must also be sufficiently serious that it meets the basic criteria of custodial sentences set out in the 1991 Act as amended. We take the view that the filtering process that is provided by these criteria provides an important distinction from what has gone before and should serve to limit the pool of candidates to those who really need this type of intervention.
Secondly, the small size of the STCs—that is, restricted to only 40 places—will enable them to provide (I was asked this specifically) high standards of care, education and training, and the basis that is set out in the agency specification will be underpinned by minimum standards which will be set out in the rules. Each trainee going into the course will be assessed on arrival at the centre, which will result in an individualised training plan lasting for the duration of the order and focusing on education and on tackling offending behaviour.
Thirdly, some stress has been put on the fact that there will be a restricted number of centres, and that they may be some distance from where the youngster comes. The important feature of our arrangement is the provision of intensive supervision after release. That is a crucial part of the STOs, which will be linked to through care and ensure that individualised training plans continue for the duration of the order to enable the successful rehabilitation of the offender after his or her return to the community. One proposal has been that instead of establishing these, local authority secure accommodation should be used. Such accommodation already serves a variety of purposes in dealing with difficult and disturbed children between the ages of 10 and 18. While some of those are offenders, many are not. The Government believe that the new secure training centres, dedicated to dealing with persistent offenders within a relatively small age range, will be able to provide a much more focused regime in which terms of education and programmes to tackle offending behaviour can be developed.
Notwithstanding the establishment of the centres, it is clear that local authority secure accommodation will have to be expanded by some 170 places to cater for juveniles remanded to local authority accommodation with a security requirement, or detained under the extended scope of Section 53 of the Children and Young Persons Act 1963. The locations of the centres have now been made public and they will, I wish to confirm, operate as self-contained and fully autonomous units within their own right.
506 The second major theme developed during the course of the debate was one that came together under the shorthand of the abolition of the right of silence. That may be a convenient shorthand term, but it significantly distorts what is indeed encompassed within our debate. Those clauses that are within the Bill attempt to deal with those circumstances in which inferences might be drawn from what I would suggest are clearly and narrowly defined circumstances in which an accused person does not say anything and exercises his right to silence.
There may be differences of opinion about whether such inferences should be allowed to be drawn, but it too crude a label to describe what we are about as an "abolition of the right to silence". Still less does anything in the Government's proposal affect the presumption of innocence; and of course the prosecution will still have to prove its case beyond reasonable doubt. All that we propose is that a court or a jury should be allowed to take into consideration evidence of the accused's silence alongside other evidence.
At one point there was a fine succession of distinguished chairmen of the Bar Council expressing their views. It is quite clear that when we reach Committee stage there will be detailed arguments to be considered. I should like to express my gratitude to the noble and learned Lord, Lord Ackner, for his analysis of how we got to where we are. With respect, it seems to me that his analysis is correct. Sometimes the historical and logical basis of where we are now is possibly not so solid as some people believe it to be.
The final speech from the Opposition Front Bench seemed at the outset to have no truck whatsoever with any modification. But my general impression I shall read the speeches again more carefully - is that as the debate progressed there seemed to be less concern with what is proposed now in Clause 33 following the amendment which was originally suggested by the noble and learned Lord the Lord Chief Justice and which was introduced in another place. Notwithstanding what I take to be a greater willingness to see some modification there, I understand that with regard to Clause 32 there remain concerns.
The majority of the Royal Commission were concerned that changes in the right of silence might disadvantage persons who in one way or another are to be regarded as vulnerable because of their physical or mental handicap or a mental disorder. They felt that that consideration outweighed the potential benefits if inferences could be drawn from the silence of an experienced offender.
I wish to make it clear that we take that concern very seriously. But we believe that the existing safeguards should be sufficient to allay that anxiety. Any person held in police custody has rights, which include legal advice at public expense, the right to an interpreter, medical treatment if necessary, provision of meals, and so on. Interviews with persons who are mentally disordered or handicapped should take place in the presence of an appropriate adult. All interviews in police stations are tape recorded.
507 In our view those are very substantial safeguards. Some have argued in the course of the debate that the Bill should be amended so that inferences could not be drawn from a person's silence unless particular safeguards, such as tape recording, applied at the time. I do not believe that it is necessary to spell out in that way safeguards which are already embodied in statutory codes of practice. I suggest that the approach to evidence of an accused person's silence should be the same as it is for confession evidence. The courts should be able to assess the weight of the prosecution's evidence, taking into account whether or not the appropriate safeguards applied at the time.
Even if there were some appreciation that that position might be acceptable, I understand the further argument to be that no inference should be able to be drawn from a person's failure to answer questions put by a police officer before arresting or cautioning that person. As yet, I am not persuaded of the need for restriction beyond that already allowed for in Clause 32(1), but doubtless that is a matter to which we shall return in Committee. All I say is that what a person does or does not say when first encountered by the police in suspicious circumstances may be significant.
Research for the Royal Commission on Criminal Justice showed that between 5 and 9 per cent. of suspects refuse to answer all police questions. More recent research carried out on behalf of ACPO showed 10 per cent. refusing to answer all questions. The ACPO research also indicates that experienced offenders with five or more convictions are more than three times as likely as suspects without convictions to refuse to answer questions during interview. The public may legitimately want to know why.
In 1990 the Northern Ireland Office carried out a limited review of the effect of the Criminal Evidence (Northern Ireland) Order 1988. A summary of the findings has been placed in the Library. The order fulfils an important purpose in helping to bring serious criminals to justice, including terrorists. There have been many cases in which defendants have been convicted of serious offences after inferences were drawn from their silence under police questioning or in court, alongside other evidence of guilt. We have a very real issue to consider and I have no doubt that it will be considered in great detail at Committee stage.
I wish to deal with one related matter which was raised by the distinguished chairman of the Royal Commission, the noble Viscount, Lord Runciman, and also by my noble friend Lord Alexander. As the interim government response to the Royal Commission indicated, the Government are in principle in favour of new arrangements for dealing with pre-trial issues which would include some provision for defence disclosure. But the issue of defence disclosure links with the rather more complicated issue of prosecution disclosure and also with the more general issue of pre-trial arrangements about which the Royal Commission, under the chairmanship of the noble Viscount, had both a majority and minority report. Those are important issues still being considered by 508 government. The hope is that in due course it will be possible to bring forward a package of proposals dealing with those matters together.
All I wish to say at this stage is that it does not appear to us that developments of proposals for such disclosure and proposals that we have for some modification of the inferences which might be drawn from the silence of the accused are necessarily mutually exclusive. There is no reason why, if and when a defence disclosure scheme is brought into place, inferences should not be drawn both from the failure to indicate the line of defence at the appropriate time and from the later failure to mention a fact which was later relied upon.
The final aspect of this part of the Bill which I wish to mention is that I understood the noble Lord, Lord McIntosh of Haringey, to at least indicate some sympathy for the approach that the Government have taken in taking forward the proposal advanced by the noble Viscount, Lord Runciman, and his Royal Commission for the establishment of the Criminal Cases Review Authority, appreciating that there was a great deal of detail that had to be fleshed out. The criteria for acceptance and the like require careful work.
I was a little surprised by what his noble friend said in summary, because I understood him to indicate a satisfaction that what was already within the public domain was sufficient to enable the official Opposition to feel confident that it could table an amendment immediately on the matter. I have a greater sympathy with the view indicated by the noble Lord, Lord McIntosh. We want to take this forward but it is undoubtedly extremely difficult to ensure that all the detail is properly filled in.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble and learned Lord for giving way. The problem with the position that he is taking is that neither he nor any government Minister is in a position to give a firm assurance that the legislation committee of the Cabinet will in fact include that measure in the next Queen's Speech. It is our lack of security on that point, in which we well understand the Government's position, which leads us to be unsure about what position to take in regard to what in intellectual terms is a promising approach to the problem.
§ Lord Fraser of Carmyllie
My Lords, I have made my view clear. If the noble Lord feels that a scheme can be set down for discussion in Committee, I look forward to seeing what he puts forward. But I believe it to be an extremely complicated matter which should be considered in the greatest possible detail and taking the best possible advice.
I hope that others who have contributed to the debate will not take it amiss if I go over other themes rather more shortly. A number of contributions were made with regard to aggravated trespass and those provisions that relate to the Caravan Sites Act 1968 and to the position of gypsies and New Age travellers. It has to some extent surprised me that, while there may be concerns about the particular provisions we have incorporated in the Bill, there is not an appreciation that 509 there is a very real problem out there. We had one full and alarming instance given to us at an earlier stage of the debate.
I say to the noble Lord, Lord Avebury, that we accept that there is a direct connection between the shortfall in authorised sites and the high levels of unauthorised camping. However, the existing policy has failed to reduce the level of illegal camping by gypsies, which has scarcely fallen since 1981. The local authority site provision shows no signs of keeping pace with the growth in the population in spite of the fact that authorities have since 1978 been able to claim 100 per cent. grant in respect of their capital costs. We do not believe it is right that we should maintain an open-ended commitment to provide sites for gypsies at the taxpayers' expense. Forty-five per cent. of gypsy caravans are already on council sites. That is a reasonable level of public provision. The steps we have taken to encourage more gypsies to establish their own sites will, we trust, make up for the shortfall.
A number of questions were asked about children and points of concern were raised with regard to their health and education. Our advice to local authorities will encourage them to continue to tolerate unauthorised encampments where there is no nuisance or harm and to use their eviction powers in a humane and reasonable way. One of the matters that will of course be drawn to their attention is that the presence of children is something that ought to affect the way they take the matter forward.
Perhaps I may say to the noble Lord, Lord Pearson, that Clause 55(5)—the new power to stop and search—is unlikely to affect him. It is anticipated that it will be used in circumstances where there is an apprehension of serious violence. As long as he stays in his deer forest in Scotland he will not be affected. Clause 55 does not extend north of the Border.
The provision of aggravated trespass is one that certainly north of the Border has been controversial—inflamed, I am bound to say, by what appears to me to be a quite mischievous misrepresentation of what is intended. The Leader of the Opposition is not the only Scotsman I know who likes to take his exercise climbing the hills of Scotland. Like many others, I wish I was able to join him more often. I have certainly no intention of being party to any provision whereby those of us who enjoy such an innocent pastime would in any way find ourselves restricted because of the provision. As has been pointed out by a number of my noble friends, those who are innocently partaking in 510 countryside activities have no cause for concern. It is only when they intend to intimidate or disrupt that they may find themselves on the wrong side of the law.
One very difficult and vexed issue was also raised. I refer to that clause in the Bill which bans the use of eggs from aborted foetuses for infertility treatment. By including this clause the Government recognise the strength of feeling on the topic. That was made very clear in another place where the clause was accepted without a Division. However, the authority's consultation document to which reference was made goes very much wider than the subject of this clause. For instance, in addition to those aspects relating to eggs from foetuses, the authority is seeking comments from members of the public and interested bodies and organisations on whether ovarian tissue from cadavers should be used in infertility research or treatment.
The document pays special attention to the important area of consent. Those with an interest will doubtless contribute to that consultation paper. But I do not believe that anyone should be under any misapprehension at all about the degree of public unease as regards this matter. It was for that reason, and not because it went through late at night, after midnight, that there was simply no opposition in the other place to the proposal.
My noble friend Lord Ashbourne asked me about corroboration. The provisions in Clauses 30 and 31 implement the Law Commission recommendations which were supported by the Royal Commission. I can reassure him that it simplifies an unnecessarily complex area of law and also has the effect of removing the need for a potentially offensive warning in those cases where it serves no purpose at all.
This debate has been a long and valuable one. A wide variety of points have been argued cogently and with great sincerity. My noble friend and I anticipate that this will not be the only long night in which the detail; of this Bill will be considered. I hope that we have set a clear framework for the Bill and what needs to he considered. Given this lengthy Second Reading, I have no doubt that we are now properly in position for a detailed and constructive Committee stage.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.