§ Consideration of amendments on Report resumed.
Baroness David moved Amendment No. 17:
After Clause 21, insert the following new clause:
§ ("Bail support Schemes
—(1) It shall be the duty of every local authority to provide, or to make arrangements with such persons as seem to them to be appropriate for the provision by those persons of, "bail support schemes", that is to say arrangements for the support and supervision of children and young persons granted bail in criminal proceedings.
(2) The Secretary of State may, with the consent of the Treasury, make such grants as he considers appropriate to local authorities in connection with their duties under this section.").
§ The noble Baroness said: My Lords, the new clause places a statutory duty on local authorities to provide bail support schemes for juveniles. I moved this amendment in Committee on 17th May and I am bringing it forward again because I am following up the response of the noble Earl, Lord Ferrers. He made a commitment to consider whether local authorities might be encouraged by means of a circular to set up bail support schemes. We wait to hear the response of the noble and learned Lord the Lord Advocate.
§ Bail support schemes which provide support and supervision for defendants on bail provide an important means of reducing the likelihood of offending during the crucial period awaiting trial. At present no such schemes work with juveniles, although the number working with young adults is now growing. Such schemes use a range of approaches which encourage young offenders to comply with the conditions of bail and help them to gain access to constructive opportunities and activities. The methods used include: regular officer reporting; placements with volunteers during the evening and weekends; monitored attendance at youth activities; monitoring of school attendance; programmes designed to reintroduce juveniles to school or the negotiation of specialist education provision; assistance with employment problems; involvement in youth training schemes; participation in supervised activity programmes; and work with families to help resolve conflicts, to ensure a continuing home base for the young person and to involve parents in taking more responsibility for their children's behaviour. Such methods achieve a large number of very useful objectives. The great advantage of bail support schemes is that constructive work with the young person begins during the bail period. It is not put off for weeks or months until the case has been heard.
§ While most areas have bail support schemes, some do not. A survey carried out last year by NACRO of 103 social services departments found that 30 of those authorities had no bail support arrangements for juveniles in their area and a further six had such arrangements in only part of the area. I remember that last time we debated the issue there was some discussion 1223 about the number of authorities which did or did not have such schemes, and which had some support from the Government. I hope that we may have that matter cleared up today.
§ At present local authorities are under a statutory duty to provide certain services for young offenders. They are under a statutory duty to provide "intermediate treatment" facilities. When Section 61 of the Criminal Justice Act 1991 is implemented they will be under a statutory duty to provide secure accommodation. We say that the prevention of offending on bail is so important that there should be a similar statutory duty in relation to bail support schemes.
§ Subsection (2) of the new clause establishes a mechanism whereby central government can reimburse local authorities for some or all of the cost of holding a young person in secure local authority accommodation on remand. There should be a similar arrangement in relation to bail support schemes which are equally important and which, by working effectively with young people on bail, can avoid the need to place them in secure accommodation, thereby saving a vast amount of money.
When we debated the issue in Committee the noble Earl, Lord Ferrers, resisted the idea of a statutory duty but agreed to consider whether local authorities might be encouraged to set up bail support schemes by means of a circular. He said:
I quite understand the desire of the noble Lord, Lord Hylton"—
unfortunately he is not present today—
to have a circular, which is supported by my noble friend Lord Elton".
He also is not present.
Obviously, there is a limit to the number of circulars that one can chase around to local authorities. I shall certainly consider the points that have been made. I cannot guarantee that a circular would be the right course to take, but it is a point worthy of consideration".—[Official Report, 17/5/94; col. 153.]
§ Putting the new clause down again at Report stage enables Peers to ask the Government for the results of that consideration. However, I hope that the Government might consider going further than a circular and that they might consider it an excellent statutory duty to impose. I beg to move.
§ 8.45 p.m.
§ Lord Rodger of Earlsferry
My Lords, I do not know whether it is a matter with which I or my noble friend Lord Ferrers dealt with in Committee. For some reason I am dealing with the matter that he dealt with previously. Earlier he dealt with the issue with which I had dealt previously. Your Lordships are having a variety of responses on these issues. Whether that is good or bad I leave to the judgment of the House.
The noble Baroness raised this matter on a previous occasion. As was made clear then, in March 1992 the Home Office issued guidance, with the Department of Health, to local authorities the purpose of which was to encourage those local authorities to establish schemes of the kind that the noble Baroness proposes. I am happy to say that since that time the number of bail support schemes has increased steadily.
1224 As noble Lords may be aware, the Government have made a three-year grant to NACRO for a national bail support development unit. That is a three year programme in connection with bail support schemes. Among other things, a survey has been carried out of the availability of such schemes throughout England and Wales. That survey was done on a confidential basis and therefore the exact details are not available. However, out of the 103 local authorities which were contacted, 78 have made bail support schemes available in their areas. That is an encouraging response and suggests that there is every reason to believe that local authorities are responding to the circular from the Home Office and the Department of Health and that they are indeed setting up schemes in their areas rather than seeking to avoid their responsibilities.
In addition, under the three-year plan for the probation service which was published in the autumn of last year the Government have encouraged the probation service to develop pre-trial services. Those include bail information schemes —those, of course, are different schemes—and grants to the voluntary sector to provide support for those on bail.
The Home Office has indeed gone further and is devolving to local probation services funds for grants to the voluntary sector for work with those on bail and with offenders. The funding involved in general is some £8.5 million. That figure includes an element of funding for bail support schemes. But the essence of the idea is that the arrangements are essentially local and that the decisions on spending are taken locally in the light of local needs and priorities. I stress that because in her amendment the noble Baroness seeks to impose a statutory duty on all local authorities. She will realise that the need for such a statutory duty on a local authority really depends on whether that is the way in which in that area a bail support scheme would be provided. In fact, around the country one finds that in different areas there are cases where the local bail support scheme is funded from a voluntary organisation. Therefore, in that area to provide a statutory duty on a local authority to provide exactly the same scheme as is already being provided would be inappropriate.
For that reason we believe that the scheme which has been devised by the Home Office which devolves the decision to local areas is the best way. It involves the local people who know the position on the ground in taking the decision as to what funding or what amount is appropriate in the area. Some areas will require more; some less. Thus, we think that a statutory duty such as that envisaged by the noble Baroness is inappropriate.
As she said, when the matter was discussed previously the question of a circular was raised. As I have already indicated to your Lordships, in March 1992 a circular was issued by the Home Office and the Department of Health. We have reason to believe that it is being followed with success.
I cannot say that at this precise moment the Government intend to issue a circular. As the noble Baroness will realise, there are a number of matters in the Bill and if and when it receives Royal Assent they will obviously have a bearing on subjects relating to 1225 bail. Quite a lot of clauses cover such matters. In the light of that legislation, it will be necessary at that stage to consider what circular would be appropriate.
The question of a circular has to be postponed until we see the legislation which evolves, and at the end of that stage there will need to be a circular on bail. Among the matters wrapped up in that circular, could be any further appropriate guidance in relation to the bail support schemes. So there is no immediate plan, for the reasons I gave, and it would be more appropriate if it were wrapped in the wider circular on bail which will result from the legislation. But we have every reason to believe that the steps which have been taken so far by the circular in March 1992 and in other ways are bearing fruit, and that these schemes—whose importance is well recognised by the Government—are progressing and thriving.
§ Baroness David
I thank the noble and learned Lord for his full reply. At least he seems to recognise that bail support schemes are of great importance and value. I do not quite see the reason why, if voluntary organisations are putting them into practice, that should prevent them being a statutory duty. If the duty is being performed, usually that is all right. I understand that if there is to be a circular issued after the Bill has received Royal Assent, it will apply to other matters in the bail field and that this could be included in that. At this time of night, I should like to read what the noble and learned Lord said, then take advice and decide whether it is necessary to come back at a later stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 18:
After Clause 22, insert the following new clause:
§ ("Arrest of young persons in breach of conditions of remand Liability of young persons to arrest for breaking conditions of remand
§ "Liability to arrest for breaking conditions of remand.
23A.—(1) A person who has been remanded or committed to local authority accommodation and in respect of whom conditions under subsection (7) or (10) of section 23 of this Act have been imposed may be arrested without warrant by a constable if the constable has reasonable grounds for suspecting that that person has broken any of those conditions.
(2) A person arrested under subsection (1) above—
In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.
(3) A justice of the peace before whom a person is brought under subsection (2) above—
§ The noble Earl said: This amendment would give the police the power to arrest a juvenile who breaches a condition of his remand and then return him to the court. The court would then be able to reconsider the remand decision in respect of the offence for which he was remanded.
§ In practice, I do not envisage that this power will be greatly used. In most cases a juvenile in breach of local authority remand conditions who comes to the attention of the police would do so in circumstances in which the police already have the power of arrest: for example, in the act of committing an offence. However, it is widely accepted that it would nevertheless be useful to give the police the power of arrest for breach of remand conditions. Indeed, the introduction of such a power was recommended by the Home Affairs Select Committee in its recent report on juvenile offending. I beg to move.
§ On Question, amendment agreed to.
§ Clause 23 [Detention of arrested juveniles after charge]:
§ Lord Elton moved amendment No. 19:
Page 14, line 39, leave out from ("charge),") to end of line 41 and insert ("after paragraph (b) there shall be inserted—
(c) in the case of an arrested juvenile who is not less than 12 but under 15 years of age, that—
§ The noble Lord said: My Lords, in speaking to Amendment No. 19, I should like also, with your Lordships' leave, to speak to Amendment No. 20. These are two alternative resolutions of the same problem. I hope that my noble friend will give them equal attention. Not long ago, when we were discussing at great length the Criminal Justice Act 1991, we spent a great deal of time on the question of the inappropriate detention of juveniles of the ages of 14 and 15 overnight in police cells. I cited a number of examples to your Lordships where that happened despite guidance that it was inappropriate and the fact that local social work departments were prepared and indeed volunteered and asked to be able to take the children into care overnight. The grounds varied, but usually they were that in the view of the police no suitable accommodation was available or that it was not convenient or easy to move them.
§ As a result of those debates, we moved an amendment to Section 38(6) of the Police and Criminal Evidence Act 1984 which I also helped to take through this House, so as to provide that juveniles could not be held overnight in police detention unless a custody officer certified two things. One is that it is impractical 1227 to transfer the juvenile to local authority accommoda-tion. The other alternative is that where the juvenile is aged 15 or over, no secure accommodation is available and keeping him in other local authority accommoda-tion would not be adequate to protect the public from serious harm from him.
§ Clause 23 has the effect of lowering the threshold of 15 in that case to 12, which is disturbing. It is not desirable that children aged 12 to 14 should be held overnight in police cells when they could be transferred to the local authority and held overnight in local authority accommodation. Before the rules were changed, young people of that age were not infrequently held in police custody in circumstances where local authority accommodation was available. I have a number of cases to illustrate that; but at this late hour I think that your Lordships will take them on trust.
§ However, the key characteristic of each of those cases is that the juvenile appearing in court the next day was granted either conditional bail or placed in an open unit of a regional remand and assessment centre. In other words, the requirement of security alleged by the police did not exist, which is why we now need a formal undertaking of the custody officers.
In Committee my noble friend said:
I must emphasise that that is an exceptional power… The vast majority of juveniles, who are aged 12 to 16 and who are refused bail, will continue to be looked after by the local authority in the short period following charge and before their first court appearance".—[Official Report, 17/5/94; col. 161.]
§ My two modest alternative amendments are designed to make sure that that is in fact what happens and not merely what is intended to happen. The first amendment will achieve that by restricting the use of police detention to those young people under 15 whom the Bill has already identified in Clause 1 as requiring secure detention after sentence. I understand that that is what my noble friend originally intended.
§ However, since I tabled the original amendment it has been drawn to my notice that there is another arrangement which may be preferable on which we can also reflect; namely, restricting the use of the detention power to those who would be eligible to be remanded by the court to secure accommodation under a security requirement. Both those groups of criteria are familiar. I hope that my noble friend will agree that one or other of them will serve to implement the intentions he so clearly stated in Committee. I beg to move.
§ 9 p.m.
My Lords, Amendment No. 19 seeks to alter the circumstances in which the police can use their discretion to hold an arrested juvenile aged 12, 13 or 14 in police detention. If the amendment were to be accepted, the police would only be able to detain a juvenile where the young person had been convicted of three or more imprisonable offences; where he had been subject to a supervision order or where he had breached one on a previous occasion; and where there was no local authority secure accommodation free and the police considered that that kind of accommodation was necessary in order to protect the public from serious harm.
1228 Amendment No. 20, which goes with Amendment No. 19, would also alter the circumstances in which the police can use their discretion to hold an arrested juvenile in that same age group in police detention. If Amendment No. 20 were accepted, the police would only be able to detain an arrested juvenile where he or she was charged with, or had been convicted of, a violent or sexual offence or an offence which would be punishable, in the case of an adult, with imprisonment for a term of 14 years or more; or where the juvenile had a history of absconding while remanded to local authority accommodation. In both cases it would also need to be established that there was no secure accommodation available and that that kind of accommodation was necessary to protect the public from serious harm.
I appreciate my noble friend's desire for consistency in the proposals for that age group. However, the decision to detain a juvenile overnight, or at most over a weekend, before a first court appearance is a very different one from that which applies when sentencing or remanding a juvenile. When deciding whether to deny bail for a juvenile there is a wider range of options available and more information about the juvenile will usually be available. A sentencing decision is made on a different basis too. In that case consideration will be given to the rehabilitative aim of any sentence; the background of the offender; the long term implications of a custodial sentence; and, of course, the appropriateness of the sentence for the particular offence.
In reaching a decision on whether to detain a juvenile in police cells, where there is no secure accommodation available, the police must be concerned primarily with the immediate risk to the public. The police carry the responsibility for protecting the public and ensuring that arrested youngsters appear before the court. It is only right, if responsibility rests with the police, that they should have the necessary powers to detain an arrested juvenile where they think that there would be a serious harm to the public if the juvenile were not so contained. This power should be available whatever may be the nature of the offence or nature of past history of offending.
That does not mean that I do not share my noble friend's concern that as few juveniles as possible should be held in police cells overnight. It is entirely understandable. That is why Clause 23 ensures that the police have the power to detain arrested youngsters who are aged from 12 to 14 and will only use that power on those very rare occasions when no local authority secure accommodation is available and after consultation with the local authority. In the majority of cases where that will happen, the criteria for the proposed amendment are in fact very likely to be met. I believe that it is wrong to insist that they should nevertheless always be met. I hope that my noble friend will understand that point of view.
§ Lord Elton
My Lords, I cannot say that I am at all gratified by what my noble friend has said. We have a situation in which, with great difficulty and after long debate only three years ago, we decided that the age of 1229 14 was the minimum age at which the custody of children in police cells should, under difficult circumstances, reluctantly be permitted. Three years later my noble friend comes back and says that that level should be reduced to 12 years old. Children whose voices are not within a year or more of breaking are to be included in the age group which is not protected by these strict requirements.
It seems to me that my noble friend's speech—which I shall read with great care between now and Third Reading—is dramatically inconsistent with what he said in Committee. I quoted his words a moment ago. Noble Lords will remember that the sense of what he told us in Committee was that such custody would be carried out very rarely indeed and that it would only happen to people who had had a very serious history of offending, a history so serious that they qualified under Clause 1. What he said a moment ago was that whatever the nature of the past history of offending, the police should have the power to lock up those children. I shall verify that from the Official Report between now and Third Reading.
It seems to me that the position of the Government has hardened against these people and we should be looking for the same undertakings which were given in the passage of the 1991 Act as to the sort of circumstances under which the police would justifiably have recourse to this form of custody. Those criteria are set out in a circular of guidance issued by the Home Office following our debates and in the light of what was said. The examples given were of a blizzard, a serious strike and a third illustration which I cannot at the moment remember. We were told that the only circumstances which would justify this sort of custody for a person of that age were of that order. We did not hear that tonight. I hope we shall hear it at Third Reading when I shall return to the matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 20 not moved. ]
§ Clause 24 [No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences]:
§ Lord Rodger of Earlsferry moved Amendment No. 21:
§ Page 14, line 44, after ("who") insert ("in any proceedings").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 21 I shall speak also to Amendments Nos. 22 and 24. The amendments relate to Clause 24. Their purpose is to clarify the circumstances in which Clause 24 would apply.
§ The intention of Amendments Nos. 21 and 22 is to place beyond doubt that Clause 24 is to be triggered by the present proceedings in the circumstances of the clause. Amendment No. 24 puts beyond doubt that Clause 24 is not to apply retrospectively to persons who were charged prior to the commencement of the section. The amendment makes clear that Clause 24 operates on proceedings instituted on or after the commencement of the section. I beg to move.
§ On Question, amendment agreed to.1230
§ Lord Rodger of Earlsferry moved Amendment No. 22:
§ Page 14, line 46, at end insert ("in those proceedings").
§ On Question, amendment agreed to.
§ Lord Harris of Greenwich moved Amendment No. 23:
§ Page 14, line 46, at end insert ("unless the court is of the opinion that release on bail can be justified by the exceptional circumstances of the case.").
§ The noble Lord said: My Lords, it is always a. matter of speculation who will reply to the arguments. I hope that on this occasion the noble and learned Lord the Lord Advocate will respond because I propose to quote some of the comments that he made on the last occasion we discussed the issues involved in the amendment.
§ Amendment No. 23 allows bail to be granted in serious cases which are covered by Clause 24 when the circumstances of the case are truly exceptional. Clause 24 provides that when a defendant has a previous conviction for one of a small number of serious offences —actual or attempted murder, manslaughter or rape— and appears before the court again charged with one of those offences, he or she must be refused bail and remanded in custody.
§ In any event, it would be rare for a defendant to be granted bail in those circumstances. If by some remarkable chance bail was granted, the Bail (Amendment) Act of 1993 empowers the prosecution to appeal against the granting of bail and the defendant is kept in custody until the appeal is heard. But there are rare and exceptional cases when it may be reasonable for a court to consider granting bail. Let us consider the case of a boy of 15 or 16 who is convicted of attempted rape and sentenced to long-term detention under the terms of the Children and Young Persons Act 1933. He may serve several years in custody and the period in custody and what follows it may lead to a significant improvement in his general attitude and conduct.
§ He is eventually released and over a period of time becomes a stable and law-abiding member of the community with a job, a home and a family. Then 30 years or so after the original offence he is charged with a so-called "mercy killing" in which it is alleged that he administered a fatal overdose at the request of a grievously sick relative who was in great pain. That is a most serious allegation—and I do not make light of it —but should not a court in those circumstances have the power to grant bail if it regards the case as truly exceptional? It is very difficult to believe that there is any serious argument against the court having an absolute discretion in a case of this kind to make a decision on the merits of the case. Why should Parliament be invited to say, "Under no circumstances whatever should such a person be given bail"?
I am sure that the noble and learned Lord the Lord Advocate will remember when we discussed this matter on the last occasion because he was asked a most reasonable question by his noble friend Lord Mottistone, who I am glad to see is with us this evening. The noble Lord, Lord Mottistone, said:
Before the Government start saying, 'Look, we can't trust the magistrates or the judges in regard to bail for serious offences',
they must be able to tell us that there is a good example of when such a case occurred. Even one example would help".—[Official Report, 17/5/94; col. 181.]
That seemed at the time to be an entirely reasonable statement. The noble and learned Lord the Lord Advocate did the best he could, given the fact that his brief on this point seemed to be a blank piece of paper. He said:
The Committee can rest assured that, if I had had examples which I could have given in the Committee, I would of course have done so. I did not seek to say to the Committee that I had such examples. I simply put the matter on the basis that, without being able to cite examples of the kind that my noble friend desired, my proposition to the Committee was that, even though I could not identify such cases, nonetheless Parliament was entitled to take the view that the risk was not one that should be run".—[Official Report, 17/5/94; col. 182.]
§ We all look at the noble and learned Lord with an immense degree of affection, but in the 20 or more years that I have been in this House I have not heard such an extraordinary statement made from the Government Front Bench. Here was a clear case where urgent action had to be taken by Parliament. Asked the simple question, "What evidence is there that there is a problem?", the Government spokesman says, "I have not a single example I can give that such a problem exists". I can understand rhetoric at party conferences but I find it most disturbing that we are being invited to pass legislation on that basis. I very much hope that we will not have a similar approach in the debate this evening. I beg to move.
§ 9.15 p.m.
§ Lord McIntosh of Haringey
My Lords, the noble Lord refers to rhetoric at party conferences. I am sure he will agree—I am afraid he will be forced to agree—that we have spent night after night over the past two months dealing with the consequences of ill-advised rhetoric at party conferences. That is what a large part of this Bill is about. It is an abuse of parliamentary procedure that we should be forced into this situation.
§ Lord Mottistone
My Lords, with this amendment we are also taking my Amendment No. 25 which seeks to remove Clause 24. It may be appropriate if I contribute at this stage in view of the fact that I have been so extensively quoted.
I have had, as other noble Lords have had, a letter from my noble and learned friend who has the task of tackling this matter yet again, and also a letter from my noble friend Lord Ferrers. Both letters spend a lot of time saying why they think it is a good idea to do this —in order to set everyone's mind at rest and so on. Before I get on to that I should like to say a few words about Amendment No. 23, which is a fall-back position if one likes it. I do not like it because of its implications for the magistrates' courts. I am not here concerned with the higher courts. Perhaps the noble and learned Lord, Lord Ackner, can help us with that. The magistrates' courts grant bail only where they think that bail is right. They think it is wrong that there should be a clause which implies that they should get that wrong. To accept the clause even with the noble Lord's amendment gives the pass away that it could happen because it asks to be 1232 able to grant bail in exceptional circumstances. I do not like that solution. I believe that we should get rid of this confounded clause anyway.
The important thing for your Lordships to know— perhaps it is just as well that my noble friend Lord Ferrers is not in the Chamber—is that in his letter to me he attempted to tell me of examples. I quote:There are a number of cases involving homicides which are committed on bail".I expect that that is true, but the letter does not say that there are a number of cases of homicide which are committed while on bail after the persons concerned have been found guilty of offences which are the subject of the clause in question. Therefore, I believe that we can discount that sentence. The letter continues:The most notable in recent years being the Hagans case, where the defendant, who had a previous record which included indecent assault"—indecent assault is not on the list, but let that pass—was granted bail with conditions on a charge of rape".So that fits.He went on to rape and to murder a young married woman".In the nature of things I suspect that it was not a magistrates' court which granted bail. It may have been. That is one case. The letter goes on:There is also at least one case in the last ten years where a defendant has gone on to commit manslaughter whilst already on bail for manslaughter".That is one case in the last 10 years, but the letter does not say which case and how we can identify it. I do not know why not. The letter continues:"We cannot provide an example of a person who, having been once convicted for an offence in this serious category, goes on to be charged with another, is given bail and commits a third. But there are, as I have outlined, sufficient cases to indicate that there are risks of a type from which the public ought to be protected".That must have squeezed the barrel to the bottom to get that tiny bit of juice. The only name which comes out of the whole of that letter and which might be convincing, but which probably does not apply to magistrates' courts, is the Hagans case. It is one off. It is a very exceptional case if it is true.
So we are left with what we had before. There is not a good example of where magistrates' courts have allowed people bail when they have committed the kinds of offences which are the subject of Clause 24. It is quite disgraceful that we are being pressed to include this in the Bill, because it is not necessary. Not only is it not necessary, but it implies a lack of trust in the judiciary at all levels to be careful not to give bail to people who have committed the serious kinds of offences which are the subject of Clause 24.
My noble friend Lord Ferrers said at the beginning of his letter that this matter had been the subject of long discussion between him and his colleagues. I am delighted to hear that. If he had been here I would have liked to thank him for that consideration. But they have still insisted and they really cannot find an example. It would be very good indeed if my noble and learned friend, when he replies, says "We shall go on having these discussions and we shall withdraw this clause at Third Reading if it is not struck out now". That is my contribution to this debate.
§ Baroness Mallalieu
My Lords, at the risk of repeating some of what has already been said it is worth 1233 remembering in a little more detail what happened at Committee stage on 17th May. Noble Lords from all sides of the Committee asked the Minister to return to the Home Secretary and to convey to him the overwhelming feeling that this clause was flawed. He kindly undertook to do so. But in the meantime, as has already been mentioned, he wrote to a number of us who took part in that debate and I am most grateful to him for the trouble which he took in doing so. In the letter which I received the Minister set out the Government's position in relation to some of the points which were raised but sadly there was nothing in that letter to suggest that the Home Secretary was prepared to reconsider any aspects of this clause.
The question which he was asked by a number of noble Lords was whether there was in fact any example which he could place before the House to support the need for this particular piece of legislation. As I recall, it was asked by the noble Lords, Lord McIntosh of Haringey, and Lord Mottistone, the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Harris of Greenwich. Certainly, no example was given in the correspondence which the Minister was good enough to send me.
My noble friend Lord McIntosh of Haringey put it in this way, asking whether there should be some,evidence of a mischief which is supposed to be remedied by what is virtually a full page of legislation".—[Official Report, 17/5/94; col. 181.]I ask the noble and learned Lord whether this is a real problem—or whether what we have here, in virtually a full page of statute, is something that is devoted to an empty gesture. If Criminal Justice Bills are to be used by the Government to legislate against hypothetical events which, so far as the Home Office knows, have never actually occurred in significant numbers, if at all, but which may hypothetically occur at some unspecified future date and which may thereby theoretically cause embarrassment to some Home Secretary perhaps as yet unborn, it is little wonder that I, together I suspect with the country at large, despair of the Government making any real impact on crime and its causes.
This provision is insulting to magistrates and judges alike because it says in terms, "You cannot be trusted to exercise your judgment correctly. The question of bail in these cases is far too important to be left to you". I do not know whether the noble and learned Lord can help me on this, but who has asked for this clause to be inserted in the Bill? Where does the pressure or the need for it come from? I suspect that I could supply an answer.
It is extremely rare for bail to be granted in cases such as those envisaged by the clause, but there are exceptional cases. The clause refers to culpable homicide. As I understand it, that includes the offence of causing death by dangerous driving. Manslaughter may result simply from using excessive force in self-defence when one is being attacked. Is it really to be the case that a man convicted in his youth (perhaps as a result of a driving accident, albeit a serious one) cannot many years later be granted bail when he is charged with manslaughter in circumstances such as I have just outlined?
1234 In Committee, the noble Lord, Lord Mottistone, sought to remove the clause from the Bill altogether. Amendment No. 23, which is grouped with the noble Lord's amendment, Amendment No. 23, is surely modest and is, one would hope, the very least that a sensible government would feel able to accept.
§ Lord Ackner
My Lords, I respectfully submit that where the Executive seeks to interfere with the established discretion of the judiciary, it has a very heavy burden to discharge—and the Government have not got within miles of so doing on this occasion.
With apologies to the noble and learned Lord, Lord Hailsham, who is not in his place, perhaps I may borrow one of his well known phrases. This clause bears the imprint of the cloven hoof of popularisrn—and for that reason should be ignored.
§ Baroness David
My Lords, as my name is to Amendment No. 23, I naturally support it, but having listened to everything that has been said, I think I would much prefer that the clause is deleted altogether, as the noble Lord, Lord Mottistone, wants. I hope at the very least that the noble and learned Lord will accept Amendment No. 23. It would do the Government a great deal of good if they could occasionally accept the excellent arguments which are put before them and give way rather than obstinately hanging on to what is there in the Bill.
§ 9.30 p.m.
§ Lord Rodger of Earlsferry
My Lords, I hope that we are not thought merely to cling obstinately to what is in the Bill. When this matter was before your Lordships previously, I undertook to convey to the Home Secretary the strongly held feelings of your Lordships which had been expressed in Committee. That was done, but although the matter has been reconsidered—as my noble friend Lord Ferrers said, it has been carefully and anxiously reconsidered—by the Home Secretary and so on, none the less, the Government's view is that the clause should stand, and stand in its present form.
With the greatest possible respect to the noble and learned Lord, Lord Ackner, I do not accept his characterisation, which he used in Committee, of this being interference in the courts by the Executive. With the greatest respect to him, there is all the difference in the world between a provision in an Act of Parliament and some interference—if one uses that word—by the Government, as opposed to Parliament, with what the court is doing. After all, Acts of Parliament are how judges learn part of the law that they have to apply. If the provision were enacted, it would become the law and would in no sense be the Executive interfering with the discretion of the judiciary.
The issue is a basic one. I said on a previous occasion —I did not shrink from saying it on that occasion and I do not shrink from saying it now—that I could not give your Lordships examples of such a situation having arisen. Had I been able to, as your Lordships may well imagine, I should have been delighted then, and more than delighted in the interim, had I have been able to discover examples, to have written to your Lordships. 1235 But examples there are not. I never pretended that there were. There is a fundamental disagreement, and not one that can be bridged easily, between the Government's position and the position of your Lordships who oppose the provision. I respect the position on this matter that your Lordships adopt.
On Report in another place the Opposition did not suggest that the clause should not stand part of the Bill, or anything like that. I accept that one can look at the list, and ask—as the noble Lord, Lord Wigoder, did on a previous occasion—why certain offences were not included while others were. One could look at the list and say that one could add or subtract from it. None the less, the Government have looked at the matter, taken that into account, and said that in those circumstances —not others —bail should not be considered by the court. That is not in any sense an insult to the magistrates or judges. It is merely that the Government take the view that Parliament is entitled to say that in those circumstances there should be no question of any risk arising.
It was easy, if I may say so, for noble Lords to make a certain degree of fun about whether it might theoretically —I think that is what was said—cause some embarrassment to a Home Secretary not yet born. It is not a question of embarrassment to a Home Secretary, but of the pain caused to someone who suffered as a result of an offence committed by someone who had been granted bail, however careful may have been consideration of the circumstances.
The Government say that the balance of considera-tion is that in such circumstances bail should not be available. The circumstances are rare but the Government say that in those circumstances Parliament is entitled to take the view that bail should not be available even as a last resort, as suggested in the noble Lord's amendment. We accept that where the provision applies, the. circumstances will be exceptional. We do not believe that, exceptional as they are, bail should be available in any circumstance. I hope that in the light of that explanation, the noble Lord will feel able to withdraw his amendment.
§ Lord Mottistone
My Lords, before my noble and learned friend sits down, I wish to ask him one question. He agrees that there are no examples of this particular event. He said that it is appropriate for the Executive to pass legislation which controls the courts. However, he does not give examples of that being a good idea, such as this case which has no precedent; it is new. Can my noble and learned friend think of legislation that has been introduced because it is a happy idea and on which the courts have been letting the side down, but not this particular case? I do not believe that there is one otherwise he would have come up with it.
§ Lord Rodger of Earlsferry
My Lords, I do not know whether I can give an example of the kind my noble friend is looking for. It depends exactly how one characterises it. But there are examples of situations in which Parliament has provided a rule and has left no discretion to the courts. The noble and learned Lord, Lord Ackner, posed a clear example of that in the case 1236 of life imprisonment for murder where no discretion is left to the courts. Therefore, Parliament can and has done that and I make the point strongly that it is Parliament as opposed to the Executive that is doing so.
§ Lord McIntosh of Haringey
My Lords, before the noble and learned Lord the Lord Advocate attempts again to sit down, perhaps I may make a point. He said that on Report in another place the Opposition did not oppose this provision. He will know better than I that on Report in the House of Commons it is not possible procedurally to deal with all the issues that arise from the Bill. Does the noble and learned Lord agree that in Committee the Opposition tabled an amendment which was close to that moved by the noble Lord, Lord Harris of Greenwich?
§ Lord Rodger of Earlsferry
My Lords, I certainly accept that there were discussions and amendments in Committee. However, the noble Lord, Lord McIntosh, will be equally aware that there was a Government amendment to this matter on Report, which appears in the Bill before your Lordships, and that was not opposed at that stage by the Opposition.
§ Lord Ackner
My Lords, before the noble and learned Lord sits down, will he agree that his analogy with regard to the mandatory life sentence is wholly untenable? It is not a case of reining in existing discretions as exist here. He knows as well as all of us that it was a compromise solution in order to affect the abolition of the capital offence situation.
§ Lord Rodger of Earlsferry
My Lords, of course I accept the characterisation of the situation in which that particular provision is brought forward. My concern was to say that it is an example of Parliament indicating to the judges that they will do something, and it leaves them no discretion in the matter.
§ Lord Harris of Greenwich
My Lords, no doubt the noble and learned Lord during his career at the Bar has had some unattractive cases to argue. I doubt whether he has had such a miserable case as that which he has had to defend tonight. We began by looking desperately for examples. The case of Andrew Hagans was cited. He was indeed granted bail by a magistrates' court and then he raped and murdered Anna McGurk. However, he would not have been covered by Clause 24 because his previous conviction was for indecent assault and not rape or homicide.
When governments ask for parliamentary powers of the kind for which they are asking here, one would assume that there would be a scintilla of a case, and something, (however vague and transitory it may be) which could be used to justify the powers that are being sought which, as the noble Baroness, Lady Mallalieu, said, cover a page of the statute. There is nothing. The noble and learned Lord was quite explicit. I believe that he said that there are no examples.
When this matter was put to the Minister on the last occasion and he admitted total ignorance of any such examples, I have not the slightest doubt what followed. There would have been letters from Home Office 1237 officials to the Crown Prosecution Service asking it to identify any such cases. After that huge trawl, the answer would have been that there was none.
Why do they want those powers? They want them so that speeches can be made at party conferences. There is no other serious argument behind it at all. As the noble Lord, Lord Mottistone, rightly said, Clause 24 asks us to make an implied criticism of the magistracy; and yet there is no single example of magistrates using their powers or authority irresponsibly.
I am afraid that it is just another piece of political nonsense and theatre. When the noble and learned Lord desperately thought of something that he could say to justify the contents of the clause, as far as I was able to understand the point that he was making, it was that on the assumption that such a case might arise in the next 10,20 or 30 years, somebody might be gratified that the magistrates' discretion had been limited in that fashion. No other serious argument was deployed by him at all.
On the substance of the matter that we are discussing, I agree with the noble Lord, Lord Mottistone. I prefer to get rid of the clause altogether. It is foolish, irresponsible and is yet another indication of Ministers prepared to play games with the statute book in order to derive temporary personal political advantage. There is nothing else to be said with regard to the amendment.
I intend to withdraw the amendment because the noble Lord, Lord Mottistone, is quite right with regard to the substance of the argument.
§ Amendment, by leave, withdrawn.
§ Lord Rodger of Earlsferry moved Amendment No. 24:
Page 15, line 34, at end insert:
("(6) This section does not apply in relation to proceedings instituted before its commencement.").
§ On Question, amendment agreed to.
Lord Mottistone moved Amendment No. 25:
Leave out Clause 24.
§ The noble Lord said: My Lords, I beg to move.
§ 9.43 p.m.
§ On Question, Whether the said amendment (No. 25) shall be agreed to?
§ Their Lordships divided: Contents, 23; Not-Contents, 68.
|Ackner, L.||Lockwood, B.|
|Addington, L.||Mackie of Benshie, L.|
|Cocks of Hartcliffe, L.||Mallalieu, B.|
|David, B.||Masham of Ilton, B.|
|Dean of Beswick, L.||McIntosh of Haringey, L.|
|Faithfull, B.||Monkswell, L.|
|Graham of Edmonton, L.||Monson, L.|
|Harris of Greenwich, L. [Teller.]||Mottistone, L. [Teller.]|
|Hollis of Heigham, B.||Seear, B.|
|Howie of Troon, L.||Taylor of Blackburn, L.|
|Kilbracken, L.||Wigoder, L.|
|Allenby of Megiddo, V.||Bridgeman, V.|
|Annaly, L.||Burnham, L.|
|Balfour, E.||Butterworth, L.|
|Belstead, L.||Campbell of Alloway, L.|
|Blatch, B.||Carnock, L.|
|Blyth, L.||Carr of Hadley, L.|
|Chalker of Wallasey, B.||Lyell, L.|
|Clanwilliam, E.||Mackay of Ardbrecknish, L.|
|Coleraine, L.||Mancroft, L.|
|Colwyn, L.||Marlesford, L.|
|Craigmyle, L.||McColl of Dulwich, L.|
|Cranborne, V.||Miller of Hendon, B.|
|Cumberlege, B.||Mowbray and Stourton, L.|
|Dean of Harptree, L.||Moyne, L.|
|Denham, L.||Murton of Lindisfarne, L.|
|Denton of Wakefield, B.||Norrie, L.|
|Dixon-Smith, L.||Northesk, E.|
|Downshire, M.||Peel, E.|
|Elibank, L.||Renton, L.|
|Elliott of Morpeth, L.||Rodger of Earlsferry, L.|
|Ferrers, E.||Rodney, L.|
|Fraser of Carmyllie, L.||Seccombe, B.|
|Gardner of Parkes, B.||Soulsby of Swaffham Prior, L.|
|Goschen, V.||St. Davids, V.|
|Gray, L.||Stodart of Leaston, L.|
|Grimston of Westbury, L.||Strange, B.|
|Hacking, L.||Strathclyde, L.|
|Harmar-Nicholls, L.||Strathmore and Kinghorne, E.|
|Hesketh, L.||Teynham, L.|
|Howe, E.||Trumpington, B.|
|Jenkin of Roding, L.||Ullswater, V. [Teller.]|
|Kimball, L.||Wakeham, L. [Lord Privy Seal.]|
|Leigh, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.51 p.m.
Lord Harris of Greenwich moved Amendment No. 26:
After Clause 25, insert the following new clause:
§ ( "Effect of custody on mental health of offender
.In paragraph 9 of the Part I of Schedule I to the Bail Act 1976, after sub-paragraph (d) there shall be inserted the following sub-paragraph—
(e) the state of the mental health of the defendant and the likely effect upon this of a remand in custody".").
§ The noble Lord said: My Lords, this new clause requires the court, before remanding a defendant in custody, to consider the likely impact on his or her mental health. There is, I think, a widespread concern about the current arrangements whereby mentally disturbed people are often remanded in custody for medical reports. In the year ending March 1992 there were 4,732 such reports. I think it is recognised that prison is the worst place for someone who has a mental disorder. Often they live in gloomy and insanitary conditions inside large Victorian prisons, with mentally disordered offenders being locked up for substantial periods of time—in many cases for over 20 hours a day. That, of course, exacerbates the mental condition of people who are in some cases suffering from mental illness.
§ These conditions can increase both the risk of suicide and self-mutilation. According to a Written Answer at col. WA74 of Hansard given by the noble Earl, Lord Ferrers,—whom I am glad to see here this evening—on 26th July last year, 218 prisoners took their own lives between 1988 and 1992. Just about half of those people were remand prisoners and of that group nearly one in three was mentally disordered.
§ A study of mentally disordered remand prisoners was recently carried out for the Home Office by Adrian Grounds, Susanne Dell and Katie James of the Cambridge Institute of Criminology and by Graham 1239 Robertson of the Institute of Psychiatry. I am glad this report was actually published, unlike, I understand, some other Home Office research reports which are now being suppressed by Ministers. However, this one was published and I welcome the fact that that was done. It was in the high traditions of the Home Office that it published the report—a tradition which has been followed by governments, until now, of both major political parties. However, the research in this particular case was summarised in an article contained in Home Office Research Bulletin No. 32 in 1992. The study recorded details of all the men and women remanded in custody in Holloway, Brixton and Risley over a five to six-month period in 1989. The people remanded in custody totalled 952 in all.
The authors' conclusion is worthy of our attention. They concluded:
Although there was variation in the medical organisation and practice of the three establishments … all were totally unsuitable places in terms of regime and physical conditions in which to house mentally disordered people. Why then should all these people, so few of whom were thought to require imprisonment when sentenced, have been sent to prison on remand? It seemed clear from the study that this was not because of the seriousness of their offences, but because of their apparent need for help: the courts were using remand prisons as social and psychiatric assessment and referral centres.
The research however showed remands in custody to be not only an inhumane, but an ineffective way of securing help and care for disturbed people. For those who obtained hospital places it meant weeks or months of imprisonment, at the end of which they were admitted to beds for which they had been qualified at the outset. And for the mentally ill people who were not offered beds, the process was equally unsatisfactory. In most cases they were petty offenders without social roots, for whom magistrates had evidently ordered custodial remands in the hope that some kind of solution to their problems would be found. After weeks in prison they were generally discharged back to the situations they had come from without the courts being able to arrange for accommodation, treatment or support".
§ That is the view of the authors of the report. It shows that Home Office Ministers and the last Home Secretary —and also his predecessor—all indicated their serious concern about the number of mentally disordered people who were finding their way to prison.
§ A few moments ago the noble Earl, Lord Ferrers, reminded us of the need to save public money in relation to pre-sentencing reports. He said that we must avoid unnecessary expenditure of public money. I cannot think of anything which involves greater waste of public money than sending these sad, bewildered people to remand prisons, particularly when they are sent there for reasons of social inadequacy.
§ It seems to me that once again this is an amendment which the Government could accept without a great deal of difficulty. However, I have not the slightest doubt that they will resist it. I hope to be proved wrong by the noble and learned Lord the Lord Advocate, but the Government do not appear to be even remotely interested in the arguments which are advanced against any aspect of the Bill. That is an unfortunate outcome to our discussions. Nevertheless, I look forward to being proved wrong by the noble and learned Lord the Lord Advocate. I beg to move.1240
§ Baroness Faithfull
My Lords, I rise to support the amendment. The noble Lord, Lord Harris, has spoken about the effect of custody on mentally ill offenders.
I have visited several prisons. Time and time again the warders who are in charge of the men, and who care for them, say that they are not qualified to look after mentally ill offenders. It is of great concern to them that they do not know what to do. They do not believe that they should have that task. It does not come within their terms of reference. It is harmful both to the men and to the warders looking after them.
§ 10 p.m.
§ Lord Rodger of Earlsferry
My Lords, at Committee stage I had occasion to observe that the noble Lord, Lord Harris, had remarkable powers of prediction in these matters. On this occasion he has predicted that I would resist the amendment and I have to say that his prediction is correct. However, it is not the case that that arises simply from an unwillingness to consider the matter. On the contrary, the matter has been considered and the whole issue relating to the mental health of prisoners is obviously one of considerable concern. The noble Lord, Lord Harris, has done a great service in drawing attention to the matter both in Committee and on Report.
I observe in passing that, considered strictly and technically, the amendment of the noble Lord is not appropriate. It seeks to add into the list of considerations in paragraph 9 of Part I of Schedule 1 of the Bail Act 1976 the sub-paragraph in the amendment. The effect would be to suggest that the court would have to take that into account in reaching a decision on the first of the two matters on which the court has to take a decision under paragraph 2 of the schedule. Those matters involve, for example, whether or not the person would fail to surrender to custody, or would commit an offence while on bail or interfere with a witness. Those matters have to be looked at when considering whether the person should lose the right to bail. The provision on the Marshalled List would be relevant to the second of the decisions under paragraph 2. I do not believe that that consideration would be relevant to the first of those issues. Therefore, considered in a strictly technical way, I believe that the noble Lord's amendment is not proper.
However, the matter that the noble Lord raises goes wider and is a more serious issue. As I said on the previous occasion when we discussed the matter, it is not the case that the Government have shown no interest. It is not the case that nothing is being done. The simple fact is that over the past few years there has been a development of mental health assessment schemes at both police station level and in the magistrates' courts. The effect of those schemes is that the mental condition of people to be brought before the courts is considered even before they come before the courts and their disposal considered.
For example, let us consider the Horseferry Road Magistrates' Courts. A team comprising two psychiatr-ists—one psychiatrist always being of consultant status —an approved social worker and a senior forensic psychiatric nurse attends the court two days a week. Where the magistrates ask for that to be done, the people 1241 who appear before the court are sent to the team and a report prepared about them. That report is available to the magistrates when they take the decision about bail or remand.
As the noble Lord, Lord Harris, knows perhaps better than most of us, under the Bail Act at that stage it is open to the magistrates to have regard to any other factors which appear to be relevant. Among the factors to which they will be entitled to have regard would be information which came from the team as to the effect of a remand on the mental health of the person concerned. In that way, the matter can be focused before the magistrates when they take that kind of decision.
In addition, the detail does not need to be gone into, but noble Lords will know that there are also powers available under the Mental Health Act 1983 both to the magistrates and under slightly different conditions to the Crown Courts to make orders for someone to be remitted to hospital, even at an early stage. Even if it does not go as far as that, it is always possible, as a result of the kind of examination which I have described, that in an appropriate case, if there were a decision not to proceed with the case, the psychiatrist could make an order under Section 2 or Section 3 of the Mental Health Act 1983, as appropriate, for a civil order for a person to be sent to a mental hospital for investigation and treatment. All those are available at that stage.
I accept that nevertheless a large number of people who find themselves on remand are suffering from some kind of mental condition. The result is that they have to be dealt with. As your Lordships may know, over the past few years there has been an increase in the number of transfers from prisons to hospitals. In 1989 the figure was 217. It had risen to 325 in 1990. By last year it was 749, and 480 of those transferred were remand prisoners. So there has been an increase.
I recognise that there is a need for appropriate accommodation for those people. Obviously, the figures cannot go. on rising unless there is appropriate accommodation. Here again, there has been put in place a programme for an increase in the number of secure places, particularly in connection with the National Health Service medium secure places. Again, I can give your Lordships the figures. In 1993 there were 654 medium secure places. In 1995 it is projected that the number of such places will be 1,014; and by 1996, 1,274.
In 1993 there were 416 private sector medium secure places. I do not pretend for one minute that all those places are available for people being transferred. Other people are accommodated as well. But noble Lords can see from the figures that there is a recognition of the need for such places and that there is an increase in the numbers.
Our position is therefore that work is being done and that a statutory duty of this kind is not the way forward. What has already been done is having an effect. It will continue to have an effect. We should go on in that way with the kind of scheme we have in place at the moment. To give examples of what is being done, even in terms of the prison service, in 1993 over 16,000 consultations with consultant psychiatrists took place within the prison service. The number of officers in nursing grades 1242 working in prison doubled between 1992 and now from 257 to 539. Also—I believe that it is important—the percentage of those working in prisons with profession-al qualifications in relation to healthcare staff has been increased from 35 per cent. to 51 per cent.
A lot has been done and this particular proposal is not appropriate and not necessary. There are various ways of tackling this problem in the courts and ultimately in the prisons. That is being done. That is indeed the way forward. I hope that in the light of that explanation the noble Lord will withdraw the amendment.
§ Baroness Seear
My Lords, before the noble and learned Lord sits down perhaps he can reassure us on one point. He told us that a great deal has improved, and that is very welcome news indeed. However, I well recall some years ago, when I was doing a study in Holloway, the case of someone who plainly was totally mentally disturbed. The governor agreed. I said to him —it is now a different governor, I may add—that surely this was not a case for prison but a case lor a hospital He replied, "Of course it is, but hospitals cannot be made to take someone. The courts say to me, 'Here is a case. You have to take him. You are a prison and you cannot refuse'. The hospitals can refuse."
So long as that is the case surely there will be such misplacing of people who quite clearly should not be in prison. The hospitals have a right to refuse and therefore such people get dumped in prison because there is nowhere else to put them. Can the noble and learned Lord reassure us that that position is changing and that the hospitals are not able to refuse to take those which are plainly hospital cases and not prison cases?
§ Lord Rodger of Earlsferry
My Lords, the noble Baroness raised a point on which I am not sure of the exact details. However, my understanding is that the Home Secretary has indeed a power to make an order transferring to a hospital. If I am wrong in that, I shall write to the noble Baroness. But my understanding is that, as a result of reports from responsible medical officers in prisons, in such a situation an order can be made by the Home Secretary. I believe that that deals with the point made by the noble Baroness. If I am wrong in my understanding, I shall write to her.
§ Lord Harris of Greenwich
My Lords, as the noble and learned Lord said, I rightly predicted his reply. It does not surprise me in the least because that has been the invariable response of the Government to the overwhelming proportion of amendments to the Bill which we put forward. His response did not deal with many of the serious issues which I tried to cover in my speech, particularly the Home Office research study. As I said, it was welcome, given the fact that it was published in the period before the shutters came down on Home Office research, which we now know has; been decided by Ministers for the first time.
What the noble and learned Lord said—no doubt he will intervene if he wishes to respond to the point and I shall gladly give way to him—was that it would not be appropriate to pass this amendment, laying the burden on the court in the case of remand in custody. It would be wrong to require the court to consider the impact on 1243 a person's mental health before the remand. If that is not appropriate, perhaps he can explain why Section 4 of the Criminal Justice Act 1991 requires the court to take that into account before passing a sentence of imprisonment on just such a mentally disordered person.
I know that the Government have retreated very rapidly indeed from many of the provisions of the 1991 Act, but the noble and learned Lord will forgive me for saying that it seems rather strange to lay that requirement on a court so far as a sentence of imprisonment is concerned but to resist so firmly the suggestion that it should also be considered by the court in the case of a bail decision, given the fact, as we all know, that the local prisons where such persons are kept are overflowing. Many of them suffer from hideously difficult personal problems and are not in any sense people with sophisticated criminal pasts. They are simply before the court for reasons of social and mental inadequacy.
The problem is made even worse by the so-called "care in the community" programme where the Government cheerfully throw people out of mental hospitals—many of them on to the streets—as a result of which many of them are sucked into the criminal justice system. The police have consistently told Ministers what has been happening not only in London but in other cities and in many smaller communities in this country. It is a wholly irresponsible policy for the Government to pursue.
The noble and learned Lord says that we must think of the duty psychiatrist schemes. I agree. I visited such a project in Clerkenwell which is first class and run by two first rate psychiatrists. But that in no way undermines the case for an amendment of this kind. They both flow in exactly the same direction; namely, that there could be some requirement for the court to consider the mental condition of someone they may remand in custody and at the same time have an effective duty psychiatrist system in operation. The noble and learned Lord will know from those who are briefing him that pitiably few duty psychiatrist schemes exist in this country, though the number has increased over the immediate past.
As I indicated, I shall gladly give way to the noble and learned Lord if he will answer the question I put to him a moment ago; namely, that under Section 4 of the 1991 Act the court is required to consider the mental condition of someone before deciding whether or not to send a person to prison yet it is apparently wrong for the same court to consider exactly the same issues before deciding whether or not to remand a person in custody. What is the answer?
§ 10.15 p.m.
§ Lord Rodger of Earlsferry
My Lords, the basic point is that in the other case we are dealing with a final disposal and here we are dealing with a remand where other issues are involved. As I said, it is open to the magistrates, when the matter is drawn to their attention and when appropriate, to take account of the mental condition—indeed they must take account of it—if it appears to them to be relevant. That is what paragraph 1244 9 of the schedule says. Therefore, in so far as they think the matter is relevant and it is drawn to their attention, they must already take it into account. To go further than that and place upon them a duty which would appear to apply in all cases, is going too far.
§ Lord Harris of Greenwich
My Lords, I hope that the noble and learned Lord will read those words tomorrow because, with great respect to him, they appear almost to be devoid of meaning. He tries to reconcile the two approaches yet uses terms like, "It is more appropriate in one case than the other". That is not a serious argument. However, the hour is late and we may well come back to this at Third Reading. As I indicated, I am not surprised by the response which is entirely consistent with the responses we have heard on many other occasions. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness David moved Amendment No. 27:
After Clause 29, insert the following new clause:
§ ( "Offences committed by young persons
.In section 50 of the Children and Young Persons Act 1933 there shall be inserted the following—
✶(1) Where a child or young person is alleged to have committed an offence whilst under the age of 14 years, the prosecutor shall satisfy the court that the child or young person knew that the behaviour which is alleged to have constituted the offence was seriously wrong.
(2) For the avoidance of doubt, the word "satisfy" in subsection (1) above shall mean satisfied beyond reasonable doubt".").
§ The noble Baroness said: My Lords, on 24th March this year a High Court judgment in the case of C (a minor) v The Director of Public Prosecutions, undid the common law rule which required the prosecution to satisfy a court that a child under the age of 14 understood that what he or she had done was seriously wrong. The purpose of this clause is to return the law to what it was prior to 29th March.
§ This common law principle, known as doli incapax, was an effective way of ensuring that the law was able to reflect and respond to the varying rates of maturity for different individual children; and they do vary very much indeed. The age of criminal responsibility in this country stands at 10 years. That is one of the lowest ages of criminal responsibility in Western Europe. While children of such a young age are subject to the rigours of the criminal law, it is important that some degree of flexibility is included in the legal framework for dealing with them. The aim of this clause is to require the prosecution to demonstrate to courts that children aged between 10 and 13 knew that what they were doing was seriously wrong.
§ Sometimes this will be very straightforward and easily demonstrated, particularly for those at the older end of the age range. In other cases, particularly for the younger age group, there may be serious doubt as to whether the child really understood the wrongdoing involved in his or her action. It cannot be right to burden a child as young as 10 with the stigma of a criminal conviction when the individual concerned does not understand that what he has done is wrong. For such a 1245 child it may be much more appropriate to take action, if necessary, through welfare legislation and the family proceedings court.
§ This clause is not a new or radical departure from our traditional approach to children in trouble. Rather, it aims to reassert a legal principle which has evolved over the past 150 years. There has been a series of court judgments which have clarified and supported the principle of this clause. The most recent was in 1991. The judgment in March overturning the common law principle surprised many in the child care and legal professions. This clause will enable us to return to a situation which enables criminal courts to respond sensibly and sensitively to young children.
§ Many children appearing before the court will have experienced significant difficulties while growing up. It is only right that courts have the opportunity to decide, on an individual basis, if such a child, aged 13 years or under, really is able to understand the wrongdoing involved in his or her action. This clause seeks to allow criminal courts the level of flexibility required when dealing with very young children. I would ask for your Lordships' support. I beg to move.
My Lords, the effect of this new clause would be to place on the statute book the presumption —which is known as doli incapax—that a child aged between 10 and 14 does not know the difference between right and wrong and is therefore incapable of forming the mental intention necessary for him to be convicted of a criminal offence. Some of your Lordships might find that sometimes hard to swallow, but there it is.
Your Lordships may be aware that this long-standing common law principle was earlier this year overturned in a Divisional Court ruling. I understand that the case concerned is now the subject of an appeal to the Judicial Committee of this House. It would, I think, therefore be premature at this stage to seek to legislate on the matter. I hope that the noble Baroness will agree that it would be better to wait until the outcome of the appeal is known. The Government will then give full considera-tion to its implications.
§ Baroness David
My Lords, I thank the Minister for that reply. I did not know that this was the subject of an appeal, which does, of course, make a difference. Can the noble Earl tell me when the appeal is likely to be heard?
My Lords, I am afraid that I cannot give the noble Baroness any information about that.
§ Baroness David
My Lords, I hope I have made my point because it is an important one. Our understanding of children should be rather greater. It is, again, a case of the courts being trusted and having responsibility. However, in the circumstances I have no alternative but to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Ackner moved Amendment No. 28:
Before Clause 30, insert the following new clause:
§ ( "Imputations on character
The noble and learned Lord said: My Lords, as your Lordships will recall from the debates on the right of silence, it was in 1898, under the Criminal Evidence Act, that an accused person was first allowed to give evidence in his own defence. That Act provided, because it gave that right, protection for that person being asked questions with regard to his character, his past convictions if any. Section l(f) provided that:
A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character unless"—
It is paragraph (ii) which is the relevant exception and the subject matter of the amendment. The exception reads:
unless the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for that prosecution".
§ The way it works in practice is simply this: if the accused, having given instructions for the character of the prosecution or its witnesses to be attacked, then elects to give evidence, there can be put to him his convictions so that the jury are not given a false or unbalanced picture when asked to decide whom they believe, the evidence of the prosecution or that of the defence. But your Lordships will have observed that this relates only to where the witnesses for the prosecution are attacked.
§ In the case of a fatality—murder or manslaughter, or an offence of grievous bodily injury which results in death—there is ex hypothesi no victim who can be called by the prosecution. That enables the accused to attack the character of the deceased and then to give evidence as if he were whiter than snow because no one is entitled to put to him his character. I instance the well-known defence on the western circuit known as the Portsmouth defence where the accused says, "I was subject to an outrageous homosexual attack and all I was doing was defending myself and then produces evidence of homosexual convictions in relation to the deceased, he, ex hypothesi, the defendant or accused, having a long record of violence. But that is not drawn to the attention of the jury.
§ I put forward the amendment in Committee. I submitted that I was doing no more than advancing the philosophy of the Government, with which I agreed, that the balance had tilted too far in favour of the accused and also that where there were technical rules which no longer seemed justified and which in fact seemed repugnant to common sense. They should be done away with.
§ In reply the noble Earl, Lord Ferrers, expressed considerable sympathy with the criticisms I had made of the law but said that the Government had asked the Law Commission to undertake a review of the law governing evidence of previous misconduct. The noble Lord, Lord Harris of Greenwich, pointed out in fairly firm terms that anything which was sent to the Law Commission for its consideration inevitably involved, first, delay 1247 before its report it came out, but, greater still, the length of time it took for government to find time to introduce legislation. I pointed out that coincidentally it was only a week or two before our debate that the head of the Law Commission had protested in very strong terms at the amount of dust which reports which it had made were gathering awaiting, unsuccessfully, an opportunity to be the subject matter of legislation.
§ With his usual willingness to give further thought to the matter, the noble Earl said that he would certainly consider the point that there might be a very long delay before what is a very modest alteration to the law could be given parliamentary time. It is in that sense of optimism that I raise yet again this amendment in the hope that he can provide us with some comfort on the subject. I beg to move
§ 10.30 p.m.
§ Baroness Mallalieu
My Lords, I should like to support the amendment, as I did in Committee. Where an attack is made on a live witness for the Crown, the defendant's own bad character may, if the judge gives leave, be placed before the jury so that it has the full picture in deciding where the truth lies. It seems ironic that where an attack is made on the character of the deceased who cannot give his or her own account of events, the jury is denied the right to know the details of the character of the defendant who makes the attack. Whether defending or prosecuting in a murder case as a member of the Bar, it always seemed to me that the interests of justice require that no such distinction should be made.
It will not do to suggest, as the noble Earl sought to do on the last occasion, that this is a matter for the Law Commission to consider because, as the noble and learned Lord, Lord Ackner, has already said, when the Law Commission does consider such matters and produces draft Bills, too often those Bills simply pile up because the Home Office does not press for them to take any priority in a future government programme.
This is a relatively minor but important proposal to alter the law in a respect which I should have thought would appeal to the noble Earl and his Government. I hope that he will feel able to accept the amendment on this occasion.
§ Lord Campbell of Alloway
My Lords, I support the amendment unreservedly in the light of my experience of conducting murder cases.
§ Lord Wigoder
My Lords, I feel as a matter of common sense that those who have spoken to this amendment are quite right: this is an amendment that should be supported. However, I should be grateful if one of those who has spoken could help me on one matter. It is possible, I think, to construct an argument to say that an attack on the character of a witness is carried out for the purpose of disputing the credit of that witness before the court in his evidence, whereas an attack on the character of the deceased is done for a quite different reason. It is not done to discredit his evidence; it is done to show some propensity on the part of the deceased to a certain type of behaviour. I hope 1248 that that matter can be dealt with in simple terms—I am sure that it can be—because that would remove my one lingering doubt about the merits of this obviously worthwhile amendment.
§ Lord Harris of Greenwich
My Lords, I rise briefly, as I did on the last occasion that we debated this, to agree with the noble and learned Lord, Lord Ackner, and the noble Baroness. It seems only right and proper that an amendment to the law along these lines should be accepted.
All that I would add is that I very much hope that the noble Earl will not rely on the Law Commission defence because, as the noble and learned Lord, Lord Ackner, pointed out, it impresses remarkably few people. As we all know, if a matter is referred to the Law Commission it will be a substantial period of time before it is able to adjudicate on it, and we know about the length of the queue of Law Commission Bills which are awaiting Parliament's attention.
As the noble Earl may recall, I raised this matter with the noble and learned Lord the Lord Chancellor. In my view and in, I think, the opinion of others, I did not get a wholly satisfactory response. As far as Parliament is concerned, there are intolerable delays in considering Law Commission Bills. I hope that we shall not be told this evening that we have to await a decision of the Law Commission on this important matter. It requires more urgent attention than that.
My Lords, I cannot tell your Lordships the pleasure that it gave me when the noble and learned Lord, Lord Ackner, said during the course of his introductory remarks that he agreed with the Government. From his record of voting today, that was not immediately obvious. The noble and learned Lord will forgive me if I say that I did not know that his view always was that he agreed with the Government, but he did say so this evening, and that came as nectar to my soul.
I said in Committee that I would reflect carefully on the noble and learned Lord's powerful case for his amendment. I took note in particular of your Lordships' more general impatience to deal with this matter before the Law Commission's review of the law on evidence of previous misconduct. As I said in Committee, the amendment departs from the rationale of the tit-for-tat rule, because it is not concerned with an attack upon the character of a person who is giving evidence. The victim is dead. For rather obvious reasons, he will be unable to give evidence.
The amendment will though increase, albeit marginally, the number of occasions upon which the defence has to decide whether it is worth risking putting forward what may be a truthful and justified attack upon the character of a deceased victim in a case that results in his criminal history being exposed.
The amendment has the obvious attraction of deterring unjustified attacks on the character of a deceased which would thereby spare the victim's family further suffering. Certainly the noble and learned Lord's views seem to have won the sympathy of the Committee. Like most matters, there are arguments for and against, but the Government would not wish to 1249 stand in the way of a general consensus that this limited extension of the tit-for-tat rule should be undertaken in advance of the Law Commission's fundamental review.
Of course, the noble Lord, Lord Harris of Greenwich, said, on an amendment of his to which my noble and learned friend the Lord Advocate had the unbridled pleasure of replying a little earlier, that Her Majesty's Government are not remotely interested in any improvement to the Bill that anyone might suggest. So the noble Lord, Lord Harris, would understand were I to tell him that the Government did not wish to accept the amendment, but the noble Lord will not be surprised if I tell him, as is so often the case, that his rather trenchant diktats sometime misfire and are not always correct. The fact is that the Government are in favour of amendments where they improve the Bill, but they are not in favour of amendments where they make it less effective. In this case of course we consider that the amendment would improve the Bill. I am happy to accept the noble and learned Lord's amendment.
§ Lord Ackner
My Lords, I am most grateful to the noble Earl for his kindness, and for his willingness to reconsider, as he clearly has done, the situation which was outlined on the previous occasion.
I am sorry to disappoint the noble Earl to this extent. As Hansard will show, I expressed my support for the Government in the observations I made in a distinct and limited field. I have shown that support consistently on the important matter of the right of silence, as so called. It was to that that I referred. It was not a general pat on the back for all their activities in this extensive Bill.
§ On Question, amendment agreed to.
§ Clause 30 [Abolition of corroboration rules]:
§ Lord Campbell of Alloway moved Amendment No. 29:
Page 20, leave out line 23 and insert:
("shall comply with such practice directions as to a revised form of warning as may be given by the Lord Chief Justice.").
§ The noble Lord said: My Lords, Clause 30 abolishes the current requirement that judges should warn juries of the danger of convicting on the uncorroborated evidence of the complainant (male or female) in sexual offences, or of an accomplice, leaving it to the discretion of the judge as to whether to warn or not to warn.
According to current practice, when the judge has ruled that there is no evidence capable of corroboration, he first explains to the jury the meaning of corroboration in relation to the evidence given. He then directs them that it is dangerous to convict but that they may do so if they are sure. One must be objective about this. No one can truly pretend that this is entirely satisfactory. As the noble and learned Lord the Lord Chief Justice said in his Tom Sargant Memorial Lecture:
In practice, the corroboration rules have become more and more technical and arcane; less and less in accord with common sense. Explaining them intelligibly to juries has become difficult. I therefore agree with the Royal Commission's recommendation and am glad the Bill reflects it".
§ Perhaps we may pause for a moment. Clause 30. retains the corroboration rules. It retains them and, instead of making a warning mandatory, all that it does is to leave to the discretion of the judge the decision whether or not to warn. Secondly, Clause 30 retains the 1250 current form of warning if it is given—that it is dangerous to convict—without affording any opportun-ity for the judiciary to devise any other formula.
§ The natural interpretation of the Bill is that the current form of warning in these two types of cases and in all other cases will be given where the particular circumstances must warrant a caution and that in due course further guidance will be given by the Court of Appeal or by practice directions, as proposed by the amendment. But in these two types of cases what is to happen pending such further guidance? Although it may well be said that the concept of Clause 30 was fathered by the Royal Commission, it is apparent from its report that the problems of implementation, to which I have referred, were not considered.
In those circumstances, as regards these two types of cases, it is not acceptable to leave to the judge the decision whether or not to warn. First, where no warning in current form is given, the prospect of an appeal against an unsafe conviction is simply put to the hazard, and that matter was not considered by the Royal Commission. Furthermore, the obligation to give a warning in whatever form avoids all hint of criticism of the judge who fails to warn and puts paid to the suggestion made by my right honourable friend the Secretary of State either in his Blackpool speech or in the 27-point programme that:
It is not appropriate for a female judge to have to give such a warning in a rape case with a female complainant".
§ That is a matter to which I referred on Second Reading as constituting a wholly unacceptable basis on which to support an amendment to the law as proposed by Clause 30.
§ Perhaps it is apparent that the current practice is not entirely satisfactory; that the corroboration rules should be abrogated; that Clause 30(1), which leaves those rules as they stand, is not acceptable; that leaving it to the discretion of the judge as to whether or not to warn does not begin to grapple with the essence of the problem. Therefore, perhaps a new approach, such as that proposed by Amendment No. 31, is worthy of consideration.
§ Clause 32(2) amends Section 34(2) of the Criminal Justice Act 1988 so as to abolish the need for the corroboration warning to be given before convicting only on the evidence of a child complainant in a sex case or where the child is an accomplice or for some other reason. That is not well conceived. It will tend to engender unsafe convictions in serious cases where the interests of justice and the dictates of common sense require that such warnings should be given. Furthermore, again, it would inhibit the Court of Appeal from quashing unsafe convictions.
§ The amendment to which I speak maintains current practice pending modification of it by the judiciary. It removes statutory intervention in what should continue to remain within the province of the judiciary. It avoids the problems arising in the wake of Clause 30, if enacted —the vacuum period pending guidance. I beg to move.1251
§ 10.45 p.m.
§ Lord Ackner
My Lords, on the last occasion, I listened, as always, to the admirable submissions made by the noble Baroness, Lady Mallalieu, who always prepares her work with the skill of a well-practised Queen's Counsel and then delivers it in a way in which it is a pleasure to listen. But I did not intervene because I had only a hazy recollection at the back of mind of two decisions for which I was responsible—Regina v. Beck when I was presiding in the Court of Appeal, and Regina v. Spencer, where I gave the leading judgment in your Lordships' House.
That reminded me to look at the Law Commission's report which was produced in September 1991, in order to discover what exactly had been the conclusion of the commission. It concluded:We are impressed by the almost unanimous view on consultation that the present obligation to give a corroboration warning should be abolished".It pointed out that of the 38 submissions which commented on the proposed abolition of the corroboration rules, 35 agreed with that proposal. Abolition elicited strong judicial support, in particular from the judges of the Queen's Bench Division, who responded collectively, and the Council of Her Majesty's Circuit Judges. It was viewed as highly technical, complex and potentially confusing for a judge; and it really gave the jury no assistance.
One has only to consider that at the outset of a judge's summing up he has to tell the jury that they must be satisfied so that they feel certain. In other words, they must be satisfied beyond reasonable doubt. Then, if the corroboration rules stand, the judge continues to say, "It is dangerous for you, members of the jury, to convict without corroboration. I have to direct you in this case that there is no corroboration". He then says, "But, of course, if you are so convinced with the evidence of the uncorroborated witness, you are entitled to convict". Obviously, that is an unsatisfactory situation.
I have one or two further general observations to make. I shall deal first with the direction to a jury. I quote from a decision of the Court of Appeal in Chance 1988. The court said:The aim of any direction to a jury must be to provide realistic, comprehensible and common sense guidance to enable them to avoid pitfalls and to come to a fair and just conclusion as to the guilt or innocence of the defendant. This involves the necessity of the judge tailoring his direction to the facts of the particular case. If he is required to apply rigid rules, there will inevitably be occasions when the directions will be inappropriate to the facts. Juries are quick to spot such anomalies, and will understandably view the anomaly, and often, as a result, the rest of the directions, with suspicion, thus undermining the judge's purpose. Directions on corroboration are particularly subject to this danger".I have one further quotation which comes from that most experienced, and still alive, of former Lord Justices, Lord Justice Lawton. When dealing with the object of a summing-up he observed in the case of Sparrow:The object of a summing up is to help the jury and in our experience a jury is not helped by a colourless reading out of the evidence as recorded by the judge in his notebook. The judge is more than a mere referee who takes no part in the trial save to intervene when a rule of procedure or evidence is broken. He and 1252 the jury try the case together and it is his duty to give them the benefit of his knowledge of the law and to advise them in the light of his experience as to the significance of the evidence".Lord Justice Lawton then went on to refer to the judge's duty, "always to be fair" and added:What is said must depend upon the facts of each case and in some cases the interests of justice call for a stronger comment. The trial judge, who has the feel of the case, is the person who must exercise his discretion in this matter to ensure that a trial is fair. A discretion is not to be fettered by laying down rules and regulations for its exercise".There may be cases where the evidence calls for the judge to give a particular strong and emphatic warning as to the dangers of relying upon a certain witness's evidence. How he does so will depend on the nature of the case. That is what was said in the Court of Appeal in Beck and in the House of Lords' case in Spencer, to which I have already made reference.
The Law Commission raised and dealt with the question of whether something should be put in place as regards the abrogation of the corroboration directions in sexual cases and in the accomplice case. The commission suggested that consideration should be given to a practice direction—in its view, the matter was not suitable for legislation—on the extent to which a judge should, before summing up in such a case, invite submissions from counsel as to how that particular case should be handled in order to ensure that the defence was put fairly, adequately and fully. That, no doubt, is something which may well be considered by the Judicial Studies Board and by the Chief Justice following the legislation here. I am bound to say—I expect it was only to stimulate discussion—that to find suggested in legislation the proposition that judges should comply with practice directions issued by the Lord Chief Justice seemed to me a remarkable piece of surplusage. If we were going to put that in this Act, why not in every Act? Of course without legislation judges will comply with practice directions. If not, the Court of Appeal will have something very firm to say about it.
With regard to the further part, that is, subsections (2) and (3), the noble Lord, Lord Campbell, perhaps overlooks that what is in the Bill is taken straight out of the draft Bill proposed by the Law Commission. In regard to those two subsections, it pointed out in the notes to its draft that the,subsection is consequential on the change effected by subsection (1). Section 34(2) of the Criminal Justice Act 1988 abolished the requirement to give the corroboration warning in respect of the evidence of a child where the warning was required only by reason that the evidence was the evidence of a child. The provision thus left untouched the requirement to give the corroboration warning where the child is an alleged accomplice or, where the alleged offence is a sexual offence, the person in respect of whom it is alleged to have been committed".That explains how those subsections were brought in. In my respectful submission—it is a particular pleasure once more to excite joy in the breast of the noble Earl, Lord Ferrers—I happen to agree with the Government's approach to this subject.
§ Baroness Mallalieu
My Lords, I have put my name to these two amendments, perhaps for slightly different reasons to those of the noble Lord, Lord Campbell of Alloway. In Committee I moved an amendment to retain the requirement that a judge should be obliged to warn the jury of the dangers of a conviction based on the 1253 evidence of a single witness who was either an accomplice of the accused or was the complainant in a sexual case where there was no evidence capable of amounting to corroboration; in other words, where there was a single witness who fell into either category.
There was some support from all sides of the Chamber for the amendment. Perhaps it was the lateness of the hour and also may be the complexity of the subject and no doubt my inability to explain it with clarity that led the noble Earl to undertake to go away and consider the matter carefully. In the interval between then and tonight he has been good enough to make time to see myself and a number of other noble Lords who expressed concern about the proposals in this Bill in the interim. I am grateful to him. We in turn had an opportunity to reflect upon the Government's position. I accept now, as I did at the earlier stage, that the present corroboration rules and warning do not work satisfactorily. They create difficulties for the judge who has to identify the specific parts of the evidence which amount to corroboration; they also create difficulties in explaining the nature of the evidence to a jury, in particular the distinction between corroboration and supportive evidence which is perhaps lost on most if not all laymen.
I remain deeply concerned about the way these changes have been proposed in the Bill because, as the noble and learned Lord, Lord Ackner, said, the proposals contained in Clauses 30 and 31 come straight from the Law Commission report. Here, I take back the criticism I made in relation to the earlier amendment. This is an example of the Home Office finding time as a matter of priority for a Law Commission Bill.
However, the additional proposal which the Law Commission made at the time it proposed this draft, and which was part and parcel of the proposed statutory changes, has not formed any part of the Government's proposals. As I hope to show the House—and I hope that noble Lords will forgive me for doing so at this late hour—it was never contemplated by the Law Commission that the warning as to the dangers of convicting on the sole evidence of an accomplice or a sexual complainant should go altogether. Yet that is the unfortunate and erroneous interpretation which has resulted from the way in which the Government have set about these changes. I am most anxious to correct the misapprehension which has developed in some quarters.
I remind the House of what the Law Commission, and indeed the Royal Commission, have said about this aspect. In Part V of the Law Commission report there are five recommendations in total. They run together.
The first recommendation relates to repeal of the provision of the Sexual Offences Act which imposes a statutory corroboration requirement relating to certain procuration offences. That is now incorporated in Clause 31 of the Bill.
The second recommendation is to abolish the present common law rule whereby the judge must automatically warn the jury that it would be dangerous to convict the accused on the uncorroborated evidence of a prosecution witness who is an accomplice or complainant in a trial for a sexual offence. That is taken lock, stock and barrel and put into Clause 30 of the Bill.
1254 The third of the five provisions is the abolition of the corresponding rule applicable to summary trials. That is to be found, again wholesale, in Clause 30.
The fourth provision is the express extension of Section 34(2) of the Criminal Justice Act 1988 relating to children's evidence to summary trials. That, again, is translated wholesale to Clause 30.
What is missing, and I do not criticise the Government for not putting it in the Bill but it should have played an important part in the way in which this particular change in legislation is introduced, is Recommendation (5). I stress that it is part and parcel of a package. It is the introduction by practice direction of a scheme whereby, in a case involving issues that might need special treatment by the judge when summing up before closing speeches, the judge and counsel should discuss those issues in the absence of the jury.
One of the remaining conclusions of the Law Commission was that the judge should not be prohibited from giving the jury a warning in any particular terms about the evidence of any particular type or category of witness.
In relation to the practice direction I fully accept, as did the Law Commission, that it may not be appropriate to incorporate a practice direction in a statue. But it is important to recognise, because the Law Commission took some trouble to go into the detail of the submissions it received, what the Law Commission considered should be covered by that practice direction. I hope that the House will bear with me if I refer to a small number of the passages which deal with it.
At paragraph 4.22 the Law Commission report states:On consultation, the Criminal Bar Association and some of the Judges of the Central Criminal Court favoured the introduction of a procedural rule under which the judge would discuss at the end of the evidence (and in the absence of the jury) the nature of the summing up and the problems to be dealt with in it. The Criminal Bar Association thought that the judge should be under a duty to consider submissions on the matter, thus helping to identify the relevant issues and ensure 'that the approach of counsel in their speeches coincides with the way in which the judge intends to sum up'. The Judges of the Queens Bench Division, though they did not think that there should be an obligation in this respect, suggested that'there would be an ample opportunity for the judge to discuss [the question whether a warning should be given] in open court in the absence of a jury at the end of the evidence (or at any other stage) and in many cases the appropriate direction may well be agreed'.The Law Commission considered that that would be an advantage not merely in the present corroboration cases but in all cases that present points of any difficulty or controversy. The report states that the practice direction,is not in our view a suitable subject for legislation, and thus it does not feature in the draft Bill".Paragraph 4.27 states that,it should be used not simply in cases that fall into the present corroboration categories, but in any case in which there are difficulties about particular witnesses".Paragraph 4.29 states:
"In our view, therefore, it would be beneficial if it were provided that, in any case that involved issues of fact or the credibility of evidence that needed or might need special treatment in the summing-up, the judge should before final speeches discuss those issues with counsel in the absence of the jury".
The Law Commission continues at paragraph 4.30:We think that it would be appropriate for such a scheme to be introduced by Practice Direction, and we so recommend".1255 In a sense the Royal Commission took the same point: that a warning would still have to be given in many of these cases. The report of the Royal Commission on Criminal Justice, in the passage dealing with corroboration at page 127, states:"It may still be necessary for the judge in these cases"—that is, accomplices, and sexual cases—to warn the jury of the dangers of accepting evidence from particular witnesses. We agree, however, with the Law Commission that the approach should be not that the same warning should be applied inflexibly to every case but that, if a warning is required, the judge should tailor it to the particular circumstances of the case".What troubles me is that by introducing four parts of a five part package, the Government are in danger of creating a lacuna. Without that practice direction an integral part of the proposals of the Law Commission is excluded. The rules of evidence in relation to corroboration and warnings did not develop by pure chance. They developed because it became clear to those who practised over many years in the criminal courts, and to those who sit as judges in those courts, that there are dangers inherent in the testimony of certain witnesses.
The noble and learned Lord, Lord Ackner, referred to the overwhelming majority of those making submis-sions to the Law Commission who are in favour of the abolition of the corroboration rules and the warning. But it is right to say that those who practise in this field, men and women, represented by the Criminal Bar Association, strongly urge the retention of a warning in some form. It is only necessary to state that an accomplice is someone who was or may have been involved in the case to see that such a witness may well have a purpose of his own to serve in giving his evidence which may not be readily apparent to a jury. In today's climate of political correctness it may be less obvious, but in relation to sexual offences—offences which it is easy to allege but often hard to disprove, in particular when only the two persons concerned are present and where there is no additional evidence such as violence or injury—there is a terrible danger of a miscarriage of justice occurring one way or the other. While most other cases in which a wrongful conviction occurs—perhaps one may take the example of a murder case—have a possibility of evidence arising at a later stage which leads to the miscarriage of justice being corrected, in cases where only the complainant and the defendant are present and the complainant is lying it is only if the complainant at some later stage admits that he or she has lied that there is any prospect of that miscarriage coming to light and being corrected. A warning is an important protection against wrongful conviction. It makes no sense to try to help the genuine victims of sexual attack by removing a warning which is likely to lead to the conviction of more people on the receiving end of false allegations.
Noble Lords should be in no doubt that false allegations are being made. I have practised in this field for of the order of 24 years. As a woman Silk, a large part of my practice involves offences of sexual allegations, both prosecuting and defending. Lest it be said that what I am saying is in some way sexist, in my 1256 experience it is not just women and girls but men and boys too who lie about sexual matters. Our courts are sadly filled with cases of this nature. Many of them are genuine, but some—and a substantial proportion—are demonstrably false, not simply cases where there is insufficient evidence but cases where—and this is something I have seen myself on a number of occasions —during the course of a trial it becomes clear and the complainant actually admits that he or she has not told the truth. I have seen it with girls and boys making allegations against teachers. I have seen it with women following the breakdown of relationships; I have seen it with children in relation to parents, or even more commonly step-parents, and I have seen it with boys and girls in relation to baby-sitters. I have also seen it in relation to adult men many years later making allegations about events which occurred during their childhood.
Sometimes the reasons for those false allegations have become apparent during the trial; but sometimes they are never clear. There is an explosion of sexual cases which are genuine but there is a significant number which are false. It is left to a jury in cases which depend essentially on the words of the one witness to try to sort that out. In those circumstances, a warning is an important reminder to a jury in a case which rests on the word of one person against another, particularly in the highly charged atmosphere of a sexual complaint, that they have to be sure. It is not in any way insulting to women; it applies to both sexes and I speak not only as a woman but also as at one stage a recorder who has had on occasion to give that warning. I have never felt it to be an insult; nor have I come across any other woman practitioner practising in this field extensively who finds it so.
A warning will still be necessary. It may well be, as the noble and learned Lord, Lord Ackner, said, and as the Law Commission took the view, that it would be inappropriate to include provision for a practice direction in a statute, as these amendments propose. But my reason for supporting the amendments is to prompt the Government to do what I hoped they would have done when introducing this part of the Bill; that is, to consult the Lord Chief Justice and to give the House an assurance before the Bill passes that a practice direction will form part and parcel of this package—otherwise, a vital piece will be missing from the jigsaw.
Perhaps I may mention that there is an additional concern. If it is left solely to the discretion of a judge without any form of guidance, either statutory or by way of practice direction, as to when and in what circumstances he should give a warning about a witness, one can readily envisage a judge trying a case involving a sexual allegation which has the focus of media attention upon it. It will be incredibly difficult for such a judge to give a warning to the jury which is likely to be interpreted by the press as criticism by the judge personally of the credibility of that witness. It would be very much easier for him, in the absence of any guidance, to avoid giving that direction. It troubles me that some judges may feel constrained from giving a direction which would otherwise be appropriate.
1257 The corroboration rules, according to the Law Commission, should not be replaced by a statutory scheme. May I give, I hope, some incentive to the noble Earl that there is one further amendment tonight before the House rises, in the names of myself and the noble Lords, Lord Campbell and Lord Wigoder, which deals with a proposal for just such a statutory scheme.
If the noble Earl felt able to give an undertaking that between now and Third Reading he would consider the question of a practice direction and would consult the Lord Chief Justice in that respect, if he could assure the House that such a practice direction, along the lines of that which the Law Commission clearly intended should be part and parcel of these statutory changes, will be introduced, then I should not press a following amendment, Amendment No. 31, tonight.
However, I am anxious that tonight the noble Earl should deal with the practice direction and also make clear, if he will, that it is not contemplated by the Government that no warning should be given in these cases. Clearly it will be necessary in many of them for a warning to be retained. I hope that the noble Earl will find what I have said helpful and that he will feel able to adopt that part of the Law Commission's Bill, as he has the rest.
§ 11.15 p.m.
§ Lord Lester of Herne Hill
My Lords, even at this late hour I should like to explain why I have the good fortune to agree entirely with the speech made by the noble and learned Lord, Lord Ackner, and with the Government's welcome acceptance of the Law Commission's report, which was in turn adopted by the Royal Commission; and why I have the misfortune to disagree with the noble Baroness, Lady Mallalieu, and, I suspect, other of my friends and colleagues at the English Bar.
The noble and learned Lord, Lord Ackner, so completely described the present law that it would be impertinent of me to add to what he said. The present law regarding corroboration in relation to accomplices and any kind of sexual offence constitutes a qualification of the general principle that in an English criminal trial the jury are entitled to convict on the unsupported evidence of one witness. As I read the Bill in its present form, it will in no way prevent the judge from giving a full corroboration direction if, in his discretion, he considered it appropriate to do so, but the judge will not be obliged automatically to give such a direction. In other words, nothing in the Bill forbids the judge from giving the jury a warning in particular terms which the Law Commission recommended.
Amendment No. 31 proposed by the noble Baroness would abrogate the obligation of the judge to give a warning where there is evidence capable of amounting to corroboration; but where there is no such evidence, the judge would continue to be obliged to give a warning. But even from the noble Baroness's point of view, which I understand and respect, the amendment is flawed. At present the question of whether in fact a particular item of evidence is corroborative must be left to the jury. Under Amendment No. 31, by contrast, the judge might rule that the evidence, though weak, was 1258 technically capable of providing corroboration but then decide in his discretion not to give a corroboration warning. The jury would then have no chance to consider whether the testimony of the witness in question was in fact corroborated.
In a way that is a technical point. Perhaps I may deal briefly with other more substantive points. I should like to refer briefly to the important subject of the protection of defendants. The Law Commission was much exercised about the question of whether the abolition of the corroboration rules might result in injustice to defendants. It concluded that there was no such danger for the following reasons.
There is a general overriding rule that the judge must always put the defence fairly and adequately. The abolition of the corroboration rules would mean that witnesses now within the corroboration rules would be treated, as other witnesses already are, on their individual merits.
In addition, the Law Commission pointed out that there are two related but distinct safeguards that will not be affected by the complete abolition of the corroboration rules. The first safeguard relates to cases of any kind in which the identification of the defendant is in issue. The Turnbull rules require the judge to explain to the jury the need for special caution in accepting evidence of identification and must direct the jury in some detail and in a fairly specific way about the quality of the evidence of identification. Secondly, there is the important Beck rule to which the noble and learned Lord, Lord Ackner, referred, under which, where a witness is or may have,an interest or purpose of his own to serve",in giving evidence adverse to the defendant, the judge is obliged to warn the jury about the evidence of that witness. But unlike cases within the corroboration rules, the form and content of the warning are a matter for the judge. For example, he may choose simply to warn the jury of the need to examine the evidence of the suspect witness with care, explaining that the witness has or may have an interest of his own to serve; or in his discretion he may go further and advise the jury to look for corroboration of the evidence. I respectfully suggest that the Law Commission is quite right in indicating that those rules give adequate protection to defendants if the corroboration rules are abolished.
I turn again briefly to the overwhelming objections to the existing corroboration rules. No noble Lord who has so far spoken indicated that the rules, as they stand, are unobjectionable. The first objection to the present law is its inflexibility. Whatever may be the judge's assessment of the reliability of the evidence or the assistance that the jury needs to be given in assessing the evidence, at the moment the judge is obliged to warn in standardised terms that it is dangerous to convict. So if, for example, a defendant is charged that he broke into the victim's house with intent to steal and then raped the householder, the judge must give a corroboration warning in respect of the rape but not in respect of the burglary. Again, bearing in mind that the corroboration rules apply to summary trials as well as to trials on indictment, many noble Lords may agree with the suggestion of the late Professor Rupert Cross that it is, 1259somewhat odd to require a magistrate to reason as follows on a charge of indecent assault brought by a respectable middle-aged female: 'I believe her evidence, but I must think twice before acting upon it because sex is a mysterious thing', whereas, on a charge for assault brought by a man with numerous convictions for violence, the magistrate can simply say to himself 'I believe his evidence and I need not think twice about acting upon it because there is no particular danger that charges of violence will be made on account of neurosis, jealousy, fantasy or spite'".The second objection is to the complexity of the corroboration rule, which is notorious. Judges of great authority have commented on these problems in the strongest terms. To take one example, Lord Diplock observed that thecomplicated formulae about the concept of corroboration and the respective functions of judge and jury are … unintelligible to the ordinary layman".The rules as to what evidence is and is not capable of being corroborative are difficult and complex and the cause of many actual or alleged errors and many appeals. Moreover, the direction is quite irrational. The judge is obliged to start by saying that it is dangerous to convict on the basis of certain evidence, but then to go on to tell the jury that it is possible for them to do exactly that.
According to the circumstances of the case, the formulae can lead either to placing an unfair handicap on the prosecution or to confusion that may be detrimental to the defendant. Lord Diplock suggested that the rules, far from protecting the defendant, may, by requiring the jury to be given a complicated and technical discourse about the evidence to be corroborated,have the contrary effect [on the jury] to a sensible warning couched in ordinary language directed to the facts of the particular case".The third objection is that the present rules produce notorious anomalies. For example, they apply only to evidence given by prosecution witnesses and not to evidence given by a co-defendant. The fourth objection is that the rules require the judge to take special action over and above the discharge of his general obligation to put the case fairly to the jury, irrespective of whether in his view the testimony of the witness in fact requires a special warning or other special comment.
Finally, the noble and learned Lord, Lord Ackner, referred to the views of the judiciary and of practitioners and reminded us that the Law Commission received overwhelming evidence. Abolition elicited strong support from the judges of the Queen's Bench Division, who responded collectively, the Council of her Majesty's Circuit Judges, the Criminal Bar Association and the Law Society. One experienced circuit judge pointed out that the corroboration direction must seem,nonsensical at worst and contradictory at best to most juries. How are they to evaluate a direction that it is dangerous to convict on the uncorroborated evidence of a complainant or an accomplice against the further direction that, if they bear the warning in mind, they may convict nevertheless if they are convinced that the complainant or accomplice is telling the truth?The Law Society commented that the rules can be,meaningless in practice in any trial on mixed indictments involving offences to which the rules relate and others not covered by the rules".Many consultees pointed out that the complexity of the rules led to many mistaken rulings at trials and hence to 1260 the unmeritorious quashing of convictions on appeal. The commission received particularly critical comment on the operation of the rule in sexual offences. For example, the judges of the Queen's Bench Division— and I respectfully agree—described the current model direction as "patronising".
For all those reasons—the safeguards, the objections and the anomalies—I respectfully agree with the Bill as it stands. So far as concerns any practice direction, that is a matter for the Lord Chief Justice and his colleagues. We can surely be confident that they will fill any gap of the type referred to by the noble Baroness.
§ Lord Renton
My Lords, far be it from me at this very late hour to get into a detailed argument with the noble Lord, Lord Lester, to whom I have listened with very great interest and some surprise. I wish to point out that subsection (1) will in its present form lead to uncertainty. I shall explain why.
The subsection begins with the words "Any requirement". A requirement in the context of subsection (1) could be a requirement under statute law, under case law, under a rule of court or under a practice direction. The subsection states:Any requirement whereby at a trial on indictment it is obligatory"—that is the operative word—for the court to give the jury a warning"—it then goes on about uncorroborated evidence—is hereby abrogated".That means, by implication presumably, that if there were a subsequent requirement given either under a practice direction or under a rule stated by the judges —perhaps in the Court of Appeal (Criminal Division) —arising out of a particular case, a requirement saying that the jury might be given a warning, that would appear to be in order.
However, because of the way this subsection is phrased, ending in the words "is hereby abrogated", one wonders whether the courts, the judges making judges rules or any court giving a decision would feel free to say that there may be voluntarily a warning. That is a real difficulty of drafting which deserves the attention of my noble friend Lord Ferrers between now and Third Reading. I say that quite independently of all that has been said so admirably and in great depth by the noble Baroness, Lady Mallalieu, and, in a different sense, by the noble and learned Lord Ackner and by the noble Lord, Lord Lester. We must avoid uncertainty in our statute law, especially in a matter like this.
§ 11.30 p.m.
§ Lord Wigoder
My Lords, all of us who are still in the House at this late hour are obviously zealous in the pursuit of truth and I know will not begrudge just a few extra minutes as we consider this extremely important matter. It is not a party political issue.
I differ very much from my noble friend Lord Lester of Herne Hill. It is fortunate that it is he that I differ from and not my noble friend Lord Harris of Greenwich because that, I fear, might have caused in the noble Earl an excitement which might have had fatal consequen-ces, and that is not something that I would want to see.
1261 Members of your Lordships' House have spoken of their experience in dealing with this matter. I myself have nothing like the distinguished or broad-based legal experience of the noble and learned Lord Lord Ackner. Almost the whole of my career at the Bar was spent in the criminal courts prosecuting, defending, or trying cases. It was a very much longer career than that of the noble Baroness, Lady Mallalieu, and that is quite obvious if any noble Lords were to look at the two of us.
My experience leads me to the view that no one in their senses would implicitly believe the word of any man or woman describing their own sexual experiences. It is as simple as that. I believe that it is self-evident. If one looks at the autobiographies of distinguished people over the past few years there is always a chapter called "My first sexual experience". It is always followed a few chapters later by descriptions of various sexual deviations. Everyone knows that they are put into the book to boost the sales. Nobody believes a word of them implicitly unless there is support from some outside source.
I believe that the same is true of people acting as complainants in criminal cases, whether men or women. Of course, some of them are speaking the truth. The difficulty is knowing which ones are doing so. Some of them are fantasising completely, totally inventing a whole sexual episode. Some of them are describing a sexual episode which has taken place but altering one or two crucial factors in it. Usually in a sexual case they say that there was no consent whereas in fact there might have been consent in an episode otherwise truthfully described. Other people truthfully describe a complete sexual episode from start to finish, and those are perhaps the most evil and difficult cases of all to spot. They then attribute the wrongdoing, for reasons of malice, jealousy or spite, to some man or woman whom they know to be innocent.
There are all those types of cases, some of which are perfectly genuine and truthful cases. The problem is how does one decide which is the truth. It is not by looking at the witness and judging by his or her demeanour. That is no test and we all know the dangers of that. It is for those reasons that, over the years, the common law has come to the view that where there is no corroboration it is dangerous to convict. That seems to me to be perfectly self-evident and in accordance with common sense.
To deal with that situation now —that being the existing common law rule —there are three proposals before us. The first is that of the noble Lord, Lord Campbell of Alloway, who says, in effect, that there will need to be a warning of the dangers of convicting on uncorroborated evidence, but it can be dealt with by a practice direction.
The second alternative is that suggested by the noble Baroness, Lady Mallalieu, in the subsequent amend-ment, Amendment No. 31, which has nothing to do with the complexity of the rules about which my noble friend spoke. It is a very simple statement that, where there is no corroboration, the court shall warn the jury in terms appropriate to the facts of the case of the dangers of 1262 accepting evidence from such a witness. Nothing could be less technical or less complex than a warning of that nature.
The third alternative is the view that the Government have taken—I know that it is supported to some extent by the Law Commission—that, where there is no corroboration, the matter can properly be left to the discretion of the judge.
In an ideal world, I doubt very much whether it would make much difference whether we decided on the amendment of the noble Lord, Lord Campbell, or that of the noble Baroness, or whether it was left to the discretion of the judge. In an ideal world, I have no doubt that practically every judge in practically every single sexual case where there was no corroboration would, as a matter of course, give a warning to the jury. That would be the commonsense course and I believe that for practical purposes every judge should take it.
The danger that arises is that we do not live in an ideal world and there are problems facing judges who are asked to rely on their own discretion in the matter. Those problems were outlined clearly by the noble Baroness. They are the problems, in the first place, of the hysterical reporting in the media of cases with any sexual content. I am afraid that I cannot limit that by saying "the tabloid press" because there is hysteria throughout our press in its reporting of sexual cases.
A further consideration which has arisen largely since the Law Commission reported may have affected the commission in some way if it had realised its extent. I refer to the huge organised lobby which appears to be of the view, expressed vehemently and reported in the press extremely strongly, that every complainant in a sex case is speaking the truth and that it is absolutely monstrous and outrageous to suggest anything to the contrary. Woe betide the poor judge who, for example, on one occasion said that it was possible that when a complainant said no in a particular sexual encounter, she might possibly have meant yes. One remembers the hysteria with which that comment was greeted.
I am not seeking to be anti-feminist in any way, but it is a fact that most complainants in sex cases are women. It is therefore a fact that the lobby that supports complainants in sex cases must inevitably be a feminist lobby. I have no doubt that if most complainants were men, there would be an equivalent male lobby carrying out precisely the same activities.
There is a problem facing a judge in a sex case in which there is no corroboration. If there is some indication either by practice direction or by statute that he must give a warning as to the dangers of convicting, he will do so and nobody will be able to criticise him. If there is no practice direction and no statutory direction and it is left to the discretion of the judge, there may be a very real pressure on sensitive judges not to deliver that warning because they are fearful of the pummelling which they are liable to get in the press. I know that our judges should be above any such considerations and I have no doubt that 99 per cent. of them are. However, I believe that there is the odd case where, for the reasons I have indicated, if it is left simply 1263 to the discretion of the judge, although a warning should obviously be given, it will not be given because of the possible consequences for that judge.
In such circumstance, it is possible that if warnings are not given, miscarriages of justice may occur. Although it is not mentioned anywhere in the Long Title of the Bill, I should have thought that the primary object of any criminal justice Bill must be to prevent miscarriages of justice. Therefore, I ask the noble Earl to consider whether it would not be right to go along the lines advocated by either the noble Lord, Lord Campbell of Alloway, or the noble Baroness, Lady Mallalieu.
My Lords, the noble Lord, Lord Wigoder, said that this is not a party matter, and of course in that he is absolutely correct. The cookie crumbles, as they say, across party lines and without party involvement. Here we are considering more legal niceties in search of the truth and of a method of legal application which will enable the truth to be extracted. I know how concerned are my noble friend Lord Campbell and the noble Baroness, Lady Mallalieu, about these matters of corroborative evidence.
I had the pleasure of discussing this matter with my noble friend, the noble Baroness, and some other noble Lords after the Committee stage and before the present stage. I am grateful to them for giving me their views and for giving me the opportunity to see if, how and where we can meet their concerns. I have laboured long and hard to try to find a way of accommodating their concerns. In our discussions we discovered that our expectations of what Clause 30 should achieve are similar. The difference between us is that in order to be sure, the noble Baroness, Lady Mallalieu, my noble friend Lord Campbell and others, want judges still to be told what to do in certain types of case. The Government, on the other hand, stick more by the Law Commission's conclusion. We should prefer to give the judges a free hand.
The noble Baroness asked me whether I would give an undertaking to speak to the noble and learned Lord the Lord Chief Justice. She will not be surprised to learn that we have taken his view on the amendment. Indeed, we raised the whole matter of a practice direction—after all, it is the Lord Chief Justice who has to give the direction—when the decision was taken in the first place to adopt the Law Commission's proposal for legislation. So the noble and learned Lord the Lord Chief Justice has given the matter very careful thought. His conclusion is that a practice direction is not necessary. He is content with Clauses 30 and 31 as they stand. If further guidance proves to be necessary after the Bill is enacted, then it will fall to the Court of Appeal to provide it. That is the view of the noble and learned Lord the Lord Chief Justice.
Loath as I am to resist the combined urgings of my noble friend Lord Campbell, the noble Baroness, Lady Mallalieu, the noble Lord, Lord Wigoder, and, indeed, my noble friend Lord Renton, I approach with even more caution the prospect of writing into the statutes of the land matters relating to practice directions which are, by their very nature, non-statutory and entirely 1264 within the discretion of the Lord Chief Justice. That would be particularly so when the substance of the addition to the Bill would mean ignoring the views on this matter of the noble and learned Lord the Lord Chief Justice.
I do not often complain, but this is really like finding oneself between what one might describe as a rock and a hard place. Perhaps I can provide some reassurance to my noble friend and the noble Baroness. First, the response to the Law Commission's paper has not questioned that the judge has a continuing duty to put the defence case squarely before the jury. That is unequivocally the view of the Law Commission. The Royal Commission and the noble and learned Lord the Lord Chief Justice took that view as well.
There is no question therefore of the Bill telling judges that they cannot deliver warnings where the particular circumstances of the particular case demand it. Secondly, what the Law Commission sought was a sensible and practical approach to the judge's decision on how to sum up. The commission rejected any idea that a practice direction should categorise different types of offences and different types of witnesses. What it wanted was a pre-summing up discussion between the judge and counsel in all hard cases, whatever the nature of the case. There is nothing to prevent that sensible practice from happening now or, indeed, under the Bill. I agree with the noble and learned Lord, Lord Ackner, that whether it needs to be reinforced by practice direction is not a matter for Parliament but a matter for the noble and learned Lord the Lord Chief Justice. He is not persuaded that it is necessary, which I take as a measure of his confidence in the good sense of the judiciary.
I am also reassured by the reaction of judges to what the Bill is doing. In their response to the Law Commission, the judges have welcomed the abolition of rules which the noble and learned Lord the Lord Chief Justice has called:more and more technical and arcane; less and less in accord with common sense".My noble friend Lord Campbell suspects that judges would recoil from adverse publicity if they were to choose still to deliver warnings after the Bill becomes law. With the greatest of respect to my noble friend, I believe that he is wrong about that. I do so in part because judges need and generally have pretty thick skins when it comes to that kind of reporting and in part because they know that the press will find reason to criticise them whatever they do.
I have spoken at some length about this issue—but not as long as some noble Lords—because the amendment stems from what I realise is a deep anxiety on the part of some noble Lords. As it stands, the amendment in the name of my noble friend Lord Campbell and the noble Baroness, Lady Mallalieu, would not relieve that anxiety because it assumes that there will be a practice direction which the noble and learned Lord the Lord Chief Justice does not consider to be necessary.
I hope that in any event your Lordships will be reassured, as I have been, by the considered but wholly positive judicial response over the months and years that 1265 these proposals have been in the making. I hope that they will further be comforted that very considerable thought has been given to the anxieties that they have produced. My desire not to accept their amendments has not sprung from a position of dull obduracy on the part of the Government but simply because, on wider reflection and discussion, which has been going on for a long period of time, we consider that the Bill in its present form commands the respect of the judiciary and does not impose the risk to defendants which they fear.
§ Lord Campbell of Alloway
My Lords, at this late hour all it would be right for me to do is to thank all noble Lords who have spoken in the debate both for and against the amendment. I thank in particular the noble Baroness, Lady Mallalieu, for her outstanding contribution—
§ 11.45 p.m.
§ Lord Campbell of Alloway
My Lords, time does not allow me to deal with the tremendous contributions that have been made and I hope that it will not be thought that they were not appreciated. I wish also to thank in particular my noble friend Lord Ferrers, who has entertained long discussions with us and has taken enormous personal trouble to understand the anxieties that we felt. There is no question of any hint of dull obduracy in this affair.
This is not the time to argue, so perhaps I may reserve my position to read what has been said, to consider the matter further, perhaps to return on Third Reading and to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 30 not moved.]
Baroness Mallalieu moved Amendment No. 31:
After Clause 30, insert the following new clause:
§ ( "Requirement for warning in case depending solely on evidence of accomplice etc
. Notwithstanding any statutory or common law provision where at a trial on indictment the court determines that the case for the crown relies on the evidence of a witness who is—
§ The noble Baroness said: My Lords, I shall keep the House but a short time. It would clearly be wrong for me to move the amendment at any length. I move it in a few sentences in the hope that the noble Earl will give it some consideration.
§ In the light of our discussions, I was anxious to see whether I could find a way to meet the Government's wish to move right away from corroboration and yet retain some form of warning which would be a safeguard for a defendant. The proposed new clause moves right away from a judge having to consider corroboration or having to direct the jury in relation to it. Quite simply, it provides that in a case which rests solely on a single witness who is either an accomplice or the complainant in a sexual offence and where but for 1266 the evidence of that witness, there would be no case to answer, the court should give a warning to the jury in terms which the judge thinks appropriate to the facts of that particular case about the dangers of accepting such evidence.
§ I hope that the noble Earl will consider the matter because I appreciate fully the objections and difficulties in relation to corroboration which were outlined at some length by the noble Lord, Lord Lester, and with which I do not disagree. But in the light of the somewhat disappointing information which the noble Earl had to give the House to the effect that part five of a five-part package will not be available at once and that we shall have to wait for the Court of Appeal to deal with the matter at some point in the future, I am concerned that a safeguard should be in place to meet the difficulty which now arises.
§ Clause 31, which follows on Clause 30, is an illustration of how far those changes go. Clause 31 deals with sexual offences which, if I can put it this way, come into the category of, "He made me do it." The Bill will abolish the requirement which currently exists for corroboration before there can be any conviction in those cases. Corroboration goes but, under the provisions of Clause 30, so does any warning. We have moved from one extreme to the other at a stroke.
§ The Criminal Bar Association—men and women who practise in that field—felt that an essential safeguard for the defendant was a warning in some form. I hope that the noble Earl will undertake to look at that proposal which I believe is a fresh one. I hope that it meets the objections of the Minister and others with regard to the dangers and difficulties of a corroboration direction. I beg to move.
§ Lord Campbell of Alloway
My Lords, I support the amendment to which I have put my name. It affords a substitute for current practice. It deals with the problems in the corroboration rules as to warnings in all types of cases.
The proposed resolution is novel. It is the brainchild of the noble Baroness, Lady Mallalieu. It is worthy of the most serious consideration. I am not satisfied that as yet it has received the consideration of the noble and learned Lord the Lord Chief Justice or other members of the judiciary.
The hope is that the noble Baroness will return with the amendment on Third Reading. As the noble Lord, Lord Wigoder, pointed out, the amendment deals in a simple, straightforward way with the essence of the problem; namely, how to find the truth.
My Lords, I explained in relation to the previous amendment why the Government remain of the view that the Bill should be left as it stands. This amendment would preserve the special categorisation of witnesses who happen to be complainants in sexual offence cases or who are accomplices. It is precisely that special categorisation which we, the Law Commission and, indeed, the great majority of those who commented on the Law Commission's consultation paper, agree is no longer necessary or justifiable.
I cannot pretend to begin to match the experience, the competence or the understanding of the noble Baroness, 1267 Lady Mallalieu, or, indeed, that of other noble Lords on such matters. I have no doubt that many noble Lords know of cases where the mandatory warning has in their view prevented a miscarriage of justice. However, I guess that your Lordships may wonder whether the warning that was delivered had to be a mandatory one and whether it had to be about a category of witness. A discretionary warning by the judge who has heard the particular circumstances of the case would surely have been just as effective, and possibly even more so.
It is the cases about which we do not know that worry me more; for example, cases where the prosecution has decided not to go to trial because it was thought that the mandatory warning meant that there was no hope of success, or cases where the victim of a sex offence has had to be told that, even though he or she is totally innocent, he or she will be tarred with the same brush as are false and lying witnesses. Such people simply think, "Well, I've had enough of this. I can't go through with it". In those cases, the defendant does not even go to trial.
We are told that this piece of the law has worked for decades and that we should leave it alone. However, the Government, the Royal Commission and, indeed, the Lord Chief Justice of England all took the view that we differ from that position. That is why we have constructed the Bill as it now stands and why we believe that it ought to be left in its present form.
§ Baroness Mallalieu
My Lords, the example just given by the noble Earl and the words that he used in replying to the amendment have filled me with further alarm. I am greatly alarmed at the prospect of cases which have no prospect of success because the Crown Prosecution Service judged them not to be capable of proof, coming before the courts as a result of the abolition of the warning as a mandatory part of the 1268 judge's duty. I hope that, in many of those cases which fall into the categories of a single witness with no corroboration, judges will continue to give the warning and that the CPS will save those who come with complaints from appearing before the court in cases where there is no prospect of a conviction.
However, in proposing such statutory changes, the Law Commission saw the need for a safeguard by way of a practice direction. If we are not to have a practice direction, there must be some other safeguard. Clearly tonight is the wrong time to press the amendment or further consideration of it. I shall read with care what the noble Earl said both in relation to this and the earlier matter to see how far the worries that I have are met. At this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.