§ 3.31 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ Clause 32 [Effect of accused's failure to mention facts when questioned or charged]:
§ Lord Campbell of Alloway moved Amendment No. 32:
Page 21, line 9, at beginning insert:
("( ) Subsections (1) and (2) below do not apply unless prior to the questioning mentioned in subsection (1) the constable told the accused in ordinary language—
§ The noble Lord said: My Lords, in moving Amendment No. 32, for which I put down a marker on 1387 Second Reading in the hope that Clause 32 would stand part, I shall speak also, if I may, to the other amendments in the group.
§ The substance of the argument in support of Amendment No. 32 and the substance of the argument in opposition to Amendment No. 37 were deployed fully in Committee by myself in moving Amendment No. 25 and by other noble Lords. I therefore propose to be brief.
§ The two main questions arising are, first, whether it is Amendment No. 32 or Amendment No. 37 which affords fair, reasonable and requisite safeguards before Clause 32 can bite. The second question is whether government Amendment No. 34 can be accepted without a large measure of assurance —assurance along the lines of that provided by Amendment No. 32—and whether at the end of the day such assurance as may be given would render it, in your Lordships' opinion, inappropriate to divide on Amendment No. 32.
§ No political considerations are involved. As my noble friend the Minister said on a previous group of amendments, the cookie crumbles across party lines. That is a fortunate way, I hope, of describing the situation with which we are faced today. As your Lordships know, Amendments Nos. 32 and 37 afford safeguards before Clause 32 can bite so that some adverse inference may be drawn from the exercise of the right to silence.
§ Amendment No. 32 provides a fourfold safeguard. The constable must tell the accused in ordinary language not just the substance, the purpose and nature of the questions, but also the effect of the section and his right to maintain silence. In the tailpiece, the amendment states that some record should be made and tendered in evidence.
§ The suggestion is that those safeguards are fair, reasonable and requisite in our disordered state of society: fair to the accused, whether he be innocent or guilty; fair to the Crown; and fair to that mass of law-abiding people—the victims. Those considerations apply to Amendment No. 38 to Clause 34 and to Amendment No. 40 to Clause 35. As for Amendment No. 37, your Lordships may well think that it tips the scales of justice far too far in favour of criminals. It runs counter to the overall purpose of Clause 32. It excludes questioning on the doorstep, in the street, in the police car, or indeed, in any place whatever other than at a police station, with a lawyer in attendance, if requested, who can authenticate the tape of the interview.
§ The considerations apply also to Amendment No. 39 to Clause 34 and Amendment No. 41 to Clause 35. Just a few days ago, the Government tabled Amendment No. 34. The amendment disposes of Amendment No. 33 in my name because on arrest a caution is given. That was a matter of particular concern to the noble and learned Lord the Lord Chief Justice, whom we are delighted to see in his place, in Committee. Therefore, I shall not be moving Amendment No. 33.
§ The Government's Amendment No. 34 does not dispose of Amendment No. 32. That amendment 1388 envisages some new form of caution as reflected in subsections (a) and (b), to which I have referred, and as adopted in subsection (a) of Amendment No. 37.
§ Assuredly, come what may a new form of caution must be devised. What is the position of the Government? What assurances can be given by my noble friend Lord Ferrers? This morning in chambers I received by fax—I was little late in but it was not long ago—proposals as to a new form of caution by amendment to the PACE code—
§ Lord Wigoder
My Lords, I hope that the noble Lord will forgive me for intervening. He said that, in view of the Government's Amendment No. 34, he proposes not to proceed with Amendment No. 33. Is not the position that in many cases the caution can be given substantially before the moment of arrest? In that case, does not the noble Lord's Amendment No. 33 provide an additional protection which is not provided by the Government's amendment?
§ Lord Campbell of Alloway
My Lords, I take the noble Lord's point. Subject to the opinion of the House, I thought that it provided a sufficient safeguard. However, if it were the wish of the House I should move the amendment for the purpose of discussion. As at present advised, I am not disposed to press it. One must take a broad, common sense view. I am seeking not to be over finicky, technical or lawyer-like about this affair. I am doing my best.
This morning I received proposals as to the new form of caution by amendment to the PACE code. I shall leave my noble friend the Minister to deal with them because I have not had the opportunity to assimilate their full effect in detail.
In the tailpiece of Amendment No. 32 there is a statutory provision as to a record of the questioning being tendered in evidence. What is to be done about that? Together with the fax that I received this morning, I received notice of the intention to introduce by amendment to the PACE code some validating procedure at the police station. It goes back over everything that was said in the police car, on the door step, in the street and where have you—or what was not said—up to that point. Will this procedure be along the lines proposed by the noble and learned Lord, Lord Ackner, in subsections (b) and (c) of Amendment No. 37? What assurances will be given by my noble friend the Minister? It is a matter for your Lordships, but will such assurances as to the new form of caution and the validating procedures render it unnecessary to seek the opinion of your Lordships' House on Amendment No. 32?
Amendments Nos. 35 and 36 appear to be subsumed by my Amendment No. 42. Subject to what is said on this issue, it is the intention to move that in due course. The Government's Amendment No. 41A to Clause 36 is wholly acceptable but it in no way disposes of Amendment No. 42 as a requisite safeguard. I beg to move.
§ 3.45 p.m.
§ Lord Ackner
My Lords, in most contentious issues of major importance—and this is certainly one—it is often helpful, first, to identify and to isolate those matters which are common ground. As I see it, there are seven. First:allowing inferences to be drawn from a person's silence under police questioning … is an important change".—[Official Report, 23/5/94; col. 494.]So said the noble Earl, Lord Ferrers, on the third day of the Committee stage. The noble Earl is not given to overstatements when making admissions on behalf of the Government.
Secondly, the justification for characterising such a change as an important change is well-known to your Lordships. For nearly 100 years, by reason of Section 1 of the Criminal Evidence Act 1898, the prosecution has been prohibited from commenting on the accused's silence. As a result of judicial decisions during the past few decades judges are not permitted to invite juries to draw adverse inferences from the accused's silence.
Thirdly, and once more I quote the words of the noble Earl, Lord Ferrers, which are to be found in the same column of Hansard:such a change must be accompanied by proper safeguards".Fourthly, your Lordships are fully aware of the need for such safeguards. I quote from the Work on Evidence of the late, much-respected Professor Sir Rupert Cross. At page 31 he stated:People react to charges in very different ways and this means that all inferences from silence must be made with caution. A silent party may have been confused or taken by surprise; he may have considered the allegation unworthy of an answer; he may have wished to conceal matters concerning himself or others which are irrelevant to the case before the court. Reflections of this nature suggest that before a person's silence is allowed to count against him the circumstances must have been such that an explanation was called for and there must have been no apparent reason, apart from consciousness of guilt, for its absence. In the debate on Second Reading to which I have referred, the noble Lord, Lord Renton, identified certain classes of particularly vulnerable subjects. That is to be found at col. 490 of Hansard.
Fifthly, in the past 12 years—that is, from 1981 to 1993 —two Royal Commissions (the Philips and the Runciman) by a majority concluded that no change be made in the present position. The result was that neither the prosecution nor the judge should be entitled to invite the jury to consider using an accused's silence as evidence of his guilt. However, in each report the minority expressed the view that, subject to certain precautions, adverse comment on an accused's silence should be permitted.
The minority on the most recent Royal Commission stated at paragraph 10 on page 51:Only relevant questions asked in a room with audio or visual recording, preferably with a legal representative present, but at least after the suspect had been offered the opportunity of taking legal advice, would qualify for later comment at trial".The minority in the Philips Commission reached substantially the same view. Neither of those two minorities would have accepted the amendments proposed by the noble Lord, Lord Campbell of Alloway, or the Government.
Sixthly, between the reports of the two Royal Commissions—that is, in May 1989—Mr. Douglas 1390 Hurd, the then Home Secretary, set up a working group chaired by a senior civil servant, one of the Home Secretary's own advisers. It reported in July 1989. It is clear from that report that proper safeguards not only involved being cautioned about the consequences of silence but included access to legal advice being obtained before the suspect insisted on remaining silent.
Seventhly and last, the purpose and function of the precautions are to ensure that an affirmative answer can be given to the vital question raised by Lord Reid when this matter was debated over 20-odd years ago when the 1lth Report of the Criminal Law Revision Committee, upon which the Government's proposals were based, were so badly savaged in this House. The question which the noble Lord raised was: are you being; fair to the accused?
Perhaps I may now briefly deal with the amendments to Clause 32 in my name and in the names of the noble Lord, Lord Alexander of Weedon, the noble Viscount, Lord Runciman, and the noble Lord, Lord Irvine of Lairg. We propose four safeguards before silence under police questioning could be used against an accused person. First, the purpose and the nature of the questions must be made clear. That is totally lacking from the Government's proposal and we submit that, without such knowledge, an innocent suspect may fear that anything that he says may have implications well beyond those which he can envisage.
Secondly, a caution must be given warning of the possible effects of failing to mention any fact which may later be relied upon. I pause to say only that the amendment in the name of the noble Lord, Lord Campbell, refers to "any fact", whereas there is a proviso in Clause 32(1) which states:being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned".Thirdly, a lawyer should be present and consulted or the suspect should have stated in writing that he does not require a lawyer. That precaution is missing from both the amendments proposed by the noble Lord, Lord Campbell, and the Government.
Fourthly, questions must be tape recorded or some other contemporaneous record of the interview must be authenticated by the suspect's lawyer. Although some form of record is provided for in the amendment moved by the noble Lord, Lord Campbell, there is no obligation to have any authentication at all, with all the problems which we know that that can give rise to. Nor is that so on the part of the Government in relation to what took place at the scene, because ex hypothesi, a lawyer is not present.
As I sought to indicate by reference to two previous Royal Commissions and the report of the Home Office working party, there is nothing radical or novel about our proposals. They are wholly consistent with the minority reports of those two commissions and the recommendations of the working party.
What is startling and surprising here is that the Home Secretary has set out to ignore not only the majority views of those two Royal Commissions but even the minority views, which were far less stringent, and the report of his own working party. Bearing in mind that 1391 the last Royal Commission was designed principally to ensure the avoidance of miscarriages of justice, one would have thought that, if anything, he would have abided by the majority decision of the Royal Commission or, at the very least, by the minority view. One would not have expected him to downgrade it further. We have the odd situation that there is missing from this legislation the very safeguards for which we all look—namely, a method of reconsidering, outside the courts, allegations of miscarriages of justice; and, secondly, reducing their possibility in relation to police interrogation.
Your Lordships are aware that regrettably there are a few, although I respectfully submit not many, cases where police officers are so frustrated by the current right of silence, as it is inaccurately called, that they have invented admissions made by the accused. They have "verballed him", as it is known. I ask where the protection is to be found in future for the accused against the police inventing his very silence in such language as may be euphemistically imagined as, "Get lost", "Mind your own business", or words to that effect. Where are the safeguards to protect an innocent suspect whose reasons for remaining silent may include protection of his family or friends, a sense of bewilderment, embarrassment or outrage or a reasoned decision to wait until the allegation against him has been set out in detail and he has had the benefit of legal advice?
As was pointed out by the Royal Commission in its recent report at paragraph 13:Members of ethnic or other minority groups may have particular reasons of their own for fearing that any answers they give will be unfairly used against them … It is now well established that certain people, including some who are not mentally ill or handicapped, will confess to offences that they did not commit whether or not there has been impropriety on the part of the police. The threat of adverse comment at trial may increase the risk of confused or vulnerable suspects making false confessions".Perhaps I may now refer to the caution proposed by the Government and its relevance. As advised by the Law Revision Committee, the caution should be:If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back until you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now and you would like it written down, this will be done".That was the conclusion reached by a committee consisting of about seven judges, the DPP and other distinguished professors.
What is now proposed is something a little shorter. I managed to winkle it out of the noble Earl by teasing him that, since he said there is to be a caution, we should know what it is. The present proposal, without prejudice because it may be changed, reads as follows:You do not have to answer any question, but if you do not mention now something which you later use in your defence the court may decide that your failure to mention it now strengthens the case against you. A record will be made of anything you say and it may be given in evidence if you are brought to trail".During the debate some 20 or so years ago when the report of the Criminal Law Revision Committee was 1392 considered, the noble and learned Lord, Lord Hailsham, accepted the following observation by the Bar Council in its committee's report:The great majority of people who fall foul of the criminal law, or who are suspected of doing so, are inarticulate or weak or fearful or inadequate or deprived".I ask: what are they going to make of that sort of caution? There was a certain degree of investigation made in regard to the caution given in Ireland which is, I believe, in between the two that I have just mentioned. According to the report of Justice on that subject, the evidence showed that it was widely misinterpreted by suspects who believed that it meant that there was an obligation to answer any accusation put.
Research carried out by the Royal Commission looked at the ability of suspects to take in information at the police station. It found that the present caution, which is well known to your Lordships, was only fully understood by 42 per cent. of suspects, although a higher percentage—52 per cent.—understood what is arguably the most important part; the right to remain silent.
The caution clearly says, "Here is a right, a right to remain silent, but you would be foolish to exercise it". Or, put another way, "It would be better for you if you talked". That is just the sort of situation in which a wise person would say, "Very well, I should like some advice in those circumstances as to whether I should exercise my right to remain silent or whether I should talk. I can't do that at the scene of the crime without some assistance". I respectfully submit that the amendment we have put forward represents the minimum safeguards if we are to maintain the standard of fairness which is an essential part of our administration of justice.
§ 4 p.m.
My Lords, it may be for the convenience of your Lordships if I speak now in order to put forward the Government's view on the amendments tabled in my name to enable all of us to know exactly where we stand as regards the different amendments. I hope that that will prove to be to your Lordships' convenience.
The government amendments are Amendments Nos. 34, 41A and 187. The whole group of amendments affect Clauses 32 to 36 which deal with the inferences that may be drawn from a person's silence. The issue is whether additional safeguards should be added to those clauses and, if so, what form they should take.
As your Lordships know only too well, the effect of the clauses is to allow proper inferences to be drawn from a person's silence when questioned by the police or at his trial. The changes we are making in those clauses are not, I believe, a matter of such profound constitutional significance as some people would have us believe. But they are important; indeed, they are most important. Any change in the rules of criminal evidence is likely to be a delicate and sensitive matter and it is right that this House should take care in trying to get the answer right. It is a matter on which many of your 1393 Lordships can speak with far more learning, personal experience and erudition than ever I could hope to attain.
When considering the government amendments, we reflected carefully on what was said in Committee about the need for additional safeguards, especially in relation to Clause 32. A number of different views were expressed in that debate about how the clause should operate. There are those, like the noble and learned Lord, Lord Ackner, who argue that no inferences should be able to be drawn from the silence of a person unless he has, first, had access, or at least the opportunity of access, to legal advice. Others, including the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Campbell of Alloway, agree with the Government in saying that it should be possible to draw inferences from a person's silence under less formal conditions; for example, when he is questioned at or near the scene of a crime. But they would make it a condition for drawing such inferences that the person must have been warned about the possible consequences of his silence. That view the Government feel is the correct one: it is embodied in government Amendment No. 34 and the others tabled in my name. Amendment No. 187 makes the same sort of amendment to the Criminal Evidence (Northern Ireland) Order 1988.
Amendment No. 34 has one great virtue. As a matter of fact it has a great many virtues. But there is one particular virtue. It is short. Some may even say that it is very short. It consists of only two words. That should appeal to those noble Lords who are always demanding brevity, especially brevity in drafting. However, those two words carry great significance. Their effect is that no inference could be drawn from a person's silence under police questioning unless he or she had been warned—by being cautioned—of the possible adverse consequences if he or she were to remain silent.
Your Lordships may wonder what is the precise legal effect of the words "under caution". The terms of the caution are laid down in the codes of practice issued under the Police and Criminal Evidence Act 1984. The present caution does not, of course, contain a warning about the possible adverse effect of silence. But we intend that a new form of caution should be introduced after statutory consultation and before the clauses on inferences from silence are brought into force.
The new caution will contain two essential elements, as has been the case in Northern Ireland for the past five years. The first is a reminder to the suspect that he is not obliged to answer questions and that any answers which he may give may be given in evidence. The second is a warning about the potential dangers of his remaining silent.
The noble and learned Lord, Lord Ackner, tweaked me because the words are not available to the House. He may feel that the wording of the caution should be settled now and not left until after Royal Assent. However, I must tell the noble and learned Lord that I understand the view that when Parliament is asked to agree to new legislation it should be informed how that legislation will work in practice. I acknowledge that the wording of the caution will be a very important element in the implementation of Clause 32. That is why my 1394 right honourable friend the Home Secretary gave an indication of the possible wording of the new caution last December when the Bill was introduced.
The noble and learned Lord, Lord Ackner, told the House the possible wording. I shall not weary your Lordships by repeating it. I have no doubt that, by now, noble Lords will have remembered it perfectly. I shall only emphasise that we are not committed to any exact wording at this stage. My right honourable friend is bound by the Police and Criminal Evidence Act to consult on any changes to the codes of practice. We cannot anticipate the statutory consultation process which requires that any proposal for a change in the codes of practice must be published; that any comments on the proposals must be considered; and that the draft of a revised code must be laid before both Houses for affirmative resolution.
On a matter as important as this it would be all the more undesirable to attempt to short-circuit the consultation process with the police, the judiciary and others who can comment from experience. I hope that your Lordships will therefore rest content with what I have been able to tell your Lordships about the wording of the new caution.
The Government have a further proposal to make which is relevant to Clause 32. We intend to introduce a new procedure at police stations for putting on the record any important exchange between a police officer and a suspect which has occurred before the beginning of the formal interview. The procedure is essentially one which was recommended by the Royal Commission on Criminal Justice. It proposed that this procedure should apply to confessions which are made outside the police station. We propose that it should also apply to silence.
The procedure will be that a police officer who is interviewing a suspect at a police station must caution the suspect first and then put to him any significant admission, or failure to answer a question satisfactorily, which may have occurred before the beginning of the formal interview, probably outside the police station. The police officer will ask the suspect whether he wishes to confirm, to deny or to modify that earlier statement or silence. Failure to follow this procedure would not automatically make the previous exchange inadmissible, but it would be a matter to which the court would no doubt have regard in deciding whether it should be admitted. The new procedure will be embodied in the codes of practice, in the same way as the new caution to which I referred.
Those are the Government's proposals. After having listened carefully to the views which were expressed in Committee by your Lordships we have reached the best conclusion we could on which of the various proposals represented the best way forward. I hope that your Lordships will agree that we have arrived at a reasonable conclusion that will meet with the approval of your Lordships and that it will address the majority of the apprehensions that were expressed at Committee. It would, I suppose, be too much to expect total unanimity of acceptance by your Lordships—that would be a novel experience probably in the past 700 years and certainly in the past 12 months.
1395 The proposals clarify the circumstances in which these new arrangements will operate. They will help to avoid needless disputes. Silence will be able to be taken into account, but only after a caution has been given and, at a formal interview, the police will be required to put the matter again to the suspect.
In the other corner of the ring, if one may so describe it, stands the noble and learned Lord, Lord Ackner, with his amendment. He is the only one of the four signatories to this amendment who voted in favour of Clause 32 standing part of the Bill. He has made it clear that he strongly supports the main principles of the Government's proposals on inferences from silence. I am grateful to him for that support. We disagree with him, though, on his amendment; but I hope that this is no more than a friendly disagreement on issues which many might consider to be, relatively speaking, matters of detail.
The noble and learned Lord's amendment has a number of elements. One is that a person should be warned about the possible effect of his silence before being questioned. I, of course, have nothing to say against that, because it is what the Government themselves are proposing to do through the amendments which I shall move and to which I have spoken. Where we part company, however, is over the next part of his amendment, which would require the police to inform a suspect of the purpose and the nature of the questions which he is to be asked before interviewing him.
The Royal Commission on Criminal Justice welcomed the progress which has been made through the new national training package for basic interviewing skills launched by the Home Office in January last year. This, quite properly, encourages the police to use interviews as a way of seeking after truth, rather than as a way of merely putting pressure on a suspect to admit something which the police officer believes that he has done. But the amendment of the noble and learned Lord would oblige the police to put a good many of their cards on the table at the beginning of every interview. I doubt whether that would be sensible.
Clause 32 as it stands allows the court or the jury to draw an inference if a suspect failed to give information which he could reasonably be expected to mention in the circumstances at the time. If the suspect failed to grasp what the police were driving at, and that is why he did not mention a point, he can of course make this perfectly clear at the trial. I think that that should be a sufficient safeguard.
The most important feature, though, is that the amendment would prevent a court or a jury from drawing any inference from a person's silence unless he was interviewed in the presence of his lawyer, or had declined the services of a lawyer. We disagree with that for three reasons. First, it would confine the effect of Clause 32 to interviews which are carried out in police stations. It would remove the ability to take any account of what had happened at the scene. Secondly, as regards its effects on interviews at police stations, it is on the whole unnecessary. Thirdly, it would make no allowance for those exceptional cases in which access to a lawyer is delayed.
1396 If I might take the first objection—
§ 4.15 p.m.
§ Lord Ackner
My Lords, it is kind of the noble Earl to give way. It would have no effect at all on any admissions made at the scene. It would only have an effect on silence at the scene.
My Lords, the noble and learned Lord pre-empts that which I was just about to come to. As I said, if I might take the first of my three objections, our disagreement is, I hope, clear. The Government share the view of, among others, the noble and learned Lord the Lord Chief Justice that a court or jury should be able to take into account a person's failure to give relevant information when questioned under caution at or near the scene of a crime.
When I say relevant information I mean, of course, information on which the person later relies for his defence and which he could reasonably have been expected to mention in the circumstances at the time. It is a bit of a mouthful to keep repeating those words, but we need to keep reminding ourselves how carefully Clause 32 is framed. It is framed on the work of the Criminal Law Revision Committee in 1972 which many eminent lawyers—in which happy company I would be unable to include myself—have praised.
One can easily imagine the circumstances. A police officer goes to the scene of a riot where looting is in progress. He sees a man carrying several bottles of whisky in a bag. He says, if noble Lords can imagine it, "Excuse me sir, would you mind telling me whether this whisky belongs to you?" The man declines to answer this question and the officer then cautions him and repeats the question. Again, the man makes no reply. When he is interviewed at the police station some hours later, after being cautioned afresh, he is asked the same question again, after being reminded that he has failed to answer the question so far. He then claims that he had bought the whisky some time ago —he cannot remember where—and that he was taking it to a party when he found himself caught up in the riot. The police do not believe him, and he is prosecuted.
What is there unfair about allowing the prosecution to make adverse comment at trial on his silence after he had been warned about the risk of staying silent? If when asked at the scene the man had said "No it's not my whisky. I admit that I stole it" that fact could be put before the court. But if he says nothing that fact, at present, cannot be. I suggest that there is no reason why silence should not be treated in the same way as a confession, subject only to the additional safeguard of cautioning—which we have accepted.
The second objection to the noble and learned Lord's amendment arises when we come to questioning at a police station. Here the safeguards, which are established by the Police and Criminal Evidence Act and by the associated codes of practice, apply in full. Those safeguards are substantial. A suspect, arriving at a police station, must be reminded of his right to receive legal advice and must be given the opportunity to consult a lawyer. If he wishes, he will be interviewed in the presence of a lawyer. The interview will be tape 1397 recorded, unless it is a summary offence. If it is not tape recorded, an interview record will be made and will be shown to the suspect.
Against that background I suggest that the amendment tabled by the noble and learned Lord, Lord Ackner, is unnecessary. It provides for safeguards that already exist, under separate primary legislation and under statutory codes of practice, which are daily taken into account by the courts and which will apply to those clauses just as they at present apply to admissions. Those safeguards are not set in concrete: they can, if necessary, be improved and updated by changing the codes of practice. We are, in fact, preparing some amendments to the codes of practice in order to implement the recommendations made by the Royal Commission on Criminal Justice.
My third objection to the amendment of the noble and learned Lord, Lord Ackner, which is a serious one, is that it makes no allowance for those exceptional circumstances where access to legal advice is delayed for a limited period. That is not a frequent occurrence, but it is one which the Government and Parliament have recognised in primary legislation. It is for the courts to judge whether a confession which is made in those circumstances is admissible in any particular case. So it should be with any failure to mention a significant fact. I would find great difficulty in advising your Lordships to accept any amendment which automatically excluded the evidence from an interview which had been carried out in those exceptional circumstances.
I welcome the fact that the noble and learned Lord's amendment has been modified since Committee, so that an interview from which inferences could be drawn would not invariably have to be tape-recorded. The amendment now allows the alternative of a "contem-poraneous record", which is what the police would undertake whenever practicable. But it requires that record to be authenticated by a lawyer. That, of course, means that a lawyer would have to be present throughout the interview. I have already explained why I believe that that is undesirable. That is why I could not advise your Lordships to accept the amendment tabled by the noble and learned Lord, Lord Ackner, and why I believe that the amendment which is tabled in my name is better.
Perhaps I may refer to the amendments of my noble friend Lord Campbell of Alloway. I am very grateful for my noble friend's support for the Government's policy on inferences from silence. The purpose of the government amendment is to address in a slightly different way the concern which he and others expressed in Committee about Clause 32. My noble friend referred to the new form of caution which is to be used in relation to this clause. I am sure that he will accept the assurance which I have already given that the caution will be revised and that it will contain the two basic elements I mentioned earlier. I have explained that it would not be possible to by-pass the statutory consultation process for changes to the codes of practice.
My noble friend's amendments to Clauses 34 and 35 would require a police officer or customs officer to advise a suspect of his right to remain silent. Those clauses refer to persons being questioned by the police 1398 after being arrested. The police must caution a person if they interview him after arresting him. As I have already explained, the new form of caution will say that a person questioned by the police is not obliged to answer questions. Therefore, I believe that my noble friend's amendment is unnecessary.
My noble friend's amendment to Clause 36 would require that no inferences may be drawn by the court unless by reasoned finding and decision. I believe that the safeguards already contained in the clauses are sufficient: a court may draw such inferences, as appear proper. Judges will direct juries as necessary, and I am sure that they will do so with scrupulous care.
There are one or two other technical amendments, but the substance of the matter is contained in Amendment No. 34.
§ Lord Irvine of Lairg
My Lords, I desire to speak in relation to this group of amendments, and in particular in support of the amendments to which I have added my name, Amendments Nos. 37, 39 and 41.
The proposition that a caution of a suspect by a police officer before he is questioned amounts to a sufficient protection against a court relying on inferences from his silence or relying upon what may be a false or unreliable confession staggers me. But that is the proposition behind Amendment No. 34 in the name of the noble Earl. It is the only amendment in this group which the Government have brought forward. I will study with care in Hansard tomorrow what the noble Earl has just said, but I gained the distinct impression that he said at one point that the invocation of the right to silence was for all practical purposes to be regarded as equivalent to an admission.
My Lords, perhaps I may interrupt the noble Lord. That is not a correct interpretation of my remarks. If I gave that impression, I am sorry. It was certainly not the impression that I intended to give.
§ Lord Irvine of Lairg
My Lords, very well. We shall look at the text tomorrow. How could a caution conceivably amount to sufficient protection against adverse inferences from silence or against false or unreliable confessions? IF there is a suggestion that it could, then that staggers me. A caution does no more than warn a suspect that what he says may be evidence against him. The caution may be of greater or lesser particularity, particularly in relation to reasons associated with silence.
A caution is surely irrelevant to the precautions external to the suspect who is the subject of the questioning envisaged in Amendments Nos. 37, 39 and 41. Those precautions would ensure that there is objective verification of any confessions that may come forward from questioning which could be disputed.
I look forward to the contribution to this debate from the noble and learned Lord the Lord Chief Justice, who I am pleased to see is in his place. I look forward to it on the basis that I am about to suggest. His concern is recorded in today's press that we may not have in the next Session legislation to set up an independent body to deal with miscarriages of justice (an expectation which caused these Benches to abstain from putting 1399 down amendments to this Bill to establish such a body here and now). That concern would surely run counter to any support for Amendment No. 34 in the name of the noble Earl.
I invite the noble Earl to say when he replies to the debate whether it is now the position that we shall not have in the next Session legislation to set up a body to deal with miscarriages of justice. I ask that question because I submit to the House that we should have means external to the suspect who is the subject of the questioning to verify disputed confessions. That is all the more important if an independent body to deal with alleged miscarriages of justice is not promptly to be brought forward.
The primary point that I make is this. We should have procedures in place which are calculated to prevent miscarriages of justice occurring, in particular the availability of procedures which must apply before any inferences from silence can arise which are external to the suspect. Those are procedures which would provide for the external verification of disputed confessions. Secondly, we should have procedures for dealing with miscarriages of justice if, sadly, they happen.
From what we have read in the press, an independent body to deal with miscarriages of justice appears likely to be postponed to an uncertain date. I invite the noble Earl to assist the House in assuring us otherwise if he feels able to do so.
§ 4.30 p.m.
§ Lord Taylor of Gosforth
My Lords, the principle that a jury should, in appropriate cases, and subject to a judge's direction—and I stress that very important point —be entitled to draw proper inferences from the silence of an accused person, either in the face of police questioning or at his trial, is now accepted. But, as I said in Committee, the proposal needs to be accompanied by proper safeguards for the suspect. In this I agree with all noble Lords who have spoken thus far. The question is: how far should the safeguards go?
In my view there are three reasons why the form of the clause which we considered in Committee was unsatisfactory. First, we are making a very significant change. The words of the current police caution are as well known as any formula in the language. It is therefore vital, if justice is to be done, for all suspects in future to be put on the clearest possible notice that it is not only their statements to police officers which may be used against them at their trial but also their unreasonable failure to mention when questioned any fact that they will rely upon at trial.
Secondly, the clause in its previous form was very widely drawn. It would have allowed comment at trial not only on the silence of a suspect but also of someone who at the time of the questioning was regarded only as a potential witness —for example, during routine house-to-house inquiries. That would have been oppressive.
Thirdly, the original clause would greatly have widened the scope for allegations to be made, whether true or not, of police malpractice. We have over the years unfortunately become accustomed to complaints 1400 about so-called "verballing" of suspects by police officers. The dangers posed by Clause 32 have been described vividly in the other place as "non-verballing". In simple terms, a defendant against whom unreason-able silence was alleged could insist at trial that he did provide answers to all the questions the police asked at the scene or on the way to the police station but that the police found the answers inconvenient and so ignored them. The ambush defence, which we seek to abolish, would thus have risen phoenix-like from the ashes.
I do not propose to deal in detail with all the various proposals in the amendments before us. Following the Committee stage, I made a number of suggestions to the noble Earl, Lord Ferrers, and to the Home Secretary as a result of which Amendment No. 34 was framed, together with the very important parallel changes which the noble Earl has outlined in the form of the police caution and in the PACE codes. I believe that those changes will remedy the original defects in the form of Clause 32 by requiring a caution to have been administered—a new form of caution—before a suspect's silence can feature in the evidence against him.
The amendment addresses the first two of my concerns. As to the first, the new caution will make clear to the suspect that the law has changed and that he may no longer be safe in refusing to give any account of himself. As to the second, the very fact that the caution has to be administered ensures that the clause applies only to someone under active suspicion of being involved in criminal activity.
There is—and this is the crucial matter—the third problem of "non-verballing". I appreciate the anxieties expressed by my noble and learned friend Lord Ackner, and by the noble Lord, Lord Irvine of Lairg, in arguing for Amendment No. 37. However, the effect of that amendment would be to remove the possibility of any inference being drawn from silence until the suspect had reached the police station. They are content with that. I think that it goes too far. It would create an imbalance, an illogical imbalance, in the law because comment could be made—as it can now—on statements or admissions made at the scene of the crime but comment could not be made on silence at that stage which might in some circumstances be just as eloquent.
The noble Lord, Lord Irvine of Lairg, suggests that there is no equivalent to be found between admissions and silence. I agree. But if his logic is to be followed through, why is there not proposed an amendment which says that admissions and statements made before the police station should not be admissible unless all the panoply of tape recorders, defence lawyers, and so on, are present? If we are content to admit evidence which is incriminating when it amounts to admissions at that stage, before the police station is reached, why are we so chary of allowing comment to be made on silence, especially when it is, I remind the House, always open to the court on the direction of the judge to consider that it was not reasonable to expect the person to have mentioned the particular fact at the time?
Perhaps I may remind the House that the clause would only bite if the court or jury considered that the fact relied upon at trial and not mentioned at the scene 1401 of the crime could reasonably have been expected to have been made at the time. If there is some good reason why it could not have been made, or was not made, or if the person in question is peculiarly vulnerable and therefore it would have been unreasonable to expect him to come up with the fact there and then, that is a matter which the court can take into account.
The new requirement which would be put into the PACE code, referred to by the noble Earl—the requirement for a validation interview—builds on a recommendation of the Royal Commission. Inferences will be susceptible of being drawn from silence at the scene of the crime but only after compliance with a requirement to validate what was said or not said at the first formal interview in the police station. If there is a conflict of evidence, or allegation of malpractice, then this will be identified as a material issue at that very early stage in accordance with one of the Royal Commission's key objectives: that the issues should be highlighted as early as possible. The validation requirement would enhance the reliability of evidence not only as to silence but as to any significant statement made before arrival at the police station upon which the prosecution seek to rely. In my view it will represent a very significant improvement in our criminal procedure and one which it is both proper and desirable to achieve through amendment to the codes of practice under PACE rather than in primary legislation.
Given the undertaking of the Government to amend the caution, and to revise the codes accordingly, I would urge support for Amendment No. 34 standing in the name of the noble Earl.
§ Lord Wigoder
My Lords, before the noble and learned Lord sits down—I use this process because, as he will know, it being Report stage he will have no further opportunity of addressing us in the course of this debate—perhaps he can help us, his assistance being very much valued, by saying whether he still adheres to the view he expressed on 23rd May in Committee when he said:I hope that further thought may be given to the matter before Report stage. At present I would point out that there is an inconsistency between Clause 32 on the one hand and Clauses 34 and 35 on the other. The latter two clauses bite only on arrest, when a caution will have been given. Clause 32 bites at any time, 'on being questioned by a constable'. At the least, I suggest that Clause 32 should be brought in line with the other two clauses". —[Official Report, 23/5/94; col. 523.]Is the noble and learned Lord of the view still that Clause 32 should bite not simply on caution but on arrest? May there not be a substantial difference in time between the two?
§ Lord Taylor of Gosforth
My Lords, I was concerned that there should be a caution in all three cases. The caution is not mentioned in Clauses 34 and 35. It does not have to be because it is implicit that if one is considering the point of arrest there will have to be a caution. What I meant was that the absence of any requirement of caution in Clause 32 did not lie well with the implicit requirement of a caution in Clauses 34 and 35. But Amendment No. 34 brings the three into line in that respect.
1402 Perhaps, as I am on my feet again, I may say that while I welcome the somewhat peripheral matter raised by the noble Lord, Lord Irvine of Lairg, as to whether the review authority will very shortly figure in legislation, I do not consider that it is relevant to this particular amendment. However, as the noble Lord mentioned the matter, I should like to support the very great urgency of having that provision in legislation at an early stage.
§ Lord Campbell of Alloway
My Lords, may I ask for clarification before the noble and learned Lord sits down? Am I right then in assuming, as I did, that my Amendment No. 33 is in fact subsumed by Amendment No. 34 because of the caution? The noble and learned Lord may remember that he was concerned in Committee that Clause 32 did not bite on arrest and that there was therefore a disparity between Clauses 32, 34 and 35. Am I right in assuming that Clause 34 frankly disposes of any need for my Amendment No. 33, which seeks to give effect to the concerns expressed by the noble and learned Lord the Lord Chief Justice.
§ Lord Taylor of Gosforth
My Lords, I hoped a moment or two ago, in answer to the noble Lord, Lord Wigoder, that I had made it clear as to the respects in which I wished to see the three clauses brought into line; namely, that none of them should bite unless there was a caution. I hope that that is clear.
So far as the amendments of the noble Lord, Lord Campbell of Alloway, are concerned, I understood he was pursuing them because he was not satisfied as to the nature of the change to be made in the PACE code. I adopt the stance I have on the faith of the undertaking, which I understand to be a firm undertaking on the part of the Government, that the PACE code will be amended to require the validation procedure. That being so, with great respect, I would have thought that the noble Lord, Lord Campbell, might have withdrawn his amendment.
§ Lord Wigoder
My Lords, I believe that that completes the cross-examination of the noble and learned Lord the Lord Chief Justice.
§ Lord Wigoder
My Lords, I am one of those who was and is still against tampering with what for convenience's sake we have all referred to as the right of silence. But I accept that I am clearly not in a majority in this House. I accept that times have moved on, and that we have discussed today not the general principles but the way in which the right: of silence should now be changed.
Perhaps I may say at once that I entirely support in that position the amendment tabled by the noble and learned Lord, Lord Ackner, and his colleagues. It seems to me that Amendments Nos. 37, 39 and 41 provide a clear, positively identifiable, precise situation under which rules can be made clear both to the prosecution and the defence. It seems to me that they set up a position which eliminates, so far as human beings can, the possibility of confusion or misunderstanding or even 1403 of deliberate manipulation. I say no more about those amendments because I have no doubt that other noble Lords, particularly those whose names are on the Marshalled List, will want to speak in support of them.
Perhaps I may confine my attention to the proposed Amendment No. 34 to be moved on behalf of the Government by the noble Earl, Lord Ferrers. I find it an unhappy amendment. I believe that the results are potentially disastrous if it is made part of our law. To me it has all the indications of how very ill thought out the whole of the Government's proposals have been in this area ever since this debate began.
It must have been obvious to the noble Earl, Lord Ferrers, at a very early stage that in order to persuade your Lordships of the validity of his position it was essential that he should place before the House a simple, clear scenario, a situation, an example of a defendant remaining silent when common sense screamed out that some comment was called for. I have no doubt at all that the best brains in the Home Office were called together in order to produce the scenario.
It was produced at Committee stage. The scenario produced to persuade your Lordships to interfere with the right of silence—these are the words of the noble Earl—was:Two ramraiders attack a jeweller's shop. They are disturbed by the arrival of a police car and escape on foot to a nearby block of flats. The police give chase. They do not see the two men's facial features but they see their height, build and clothing. The police make door-to-door inquiries at the block of flats and enter one flat, where they find the tenants, a middle-aged couple, as well as two young men whose height, build and clothing happen to match those of the men for whom they are looking. The middle-aged couple seem agitated and upset. The police ask the young men what they are doing in the flat and one of them says that they have come along for a cup of tea. The middle-aged couple are too frightened to contradict the young men's story and are not prepared to give evidence against the two young men at a trial. Inquiries later reveal that there is no link between the middle-aged couple and the men. After being arrested and consulting their solicitor, the men claim that they were looking for a friend and had stopped at the flat to ask for directions. They later put that forward at the trial".That is the scenario. The comment made by the noble Earl was entirely accurate. He said:Under the law as it now stands, the inconsistency between what those men said to the police officer before they were arrested and cautioned and what they said at their trial could be the subject of very effective cross-examination and could be the subject of an inference by the jury who might think that the men were not to be believed. Equally, if the two men had said, 'We have just raided the jeweller's shop', that would be a confession and would be admissible evidence at the trial. It could form a basis— possibly the main basis—of a conviction. But if—this is the relevant part—instead of saying they had come for a cup of tea, the two men had said nothing at all to the police officer or if they had asked him to mind his own business—perhaps using more colourful language—under the existing rules the prosecuting counsel could say nothing about that. Questions such as, 'Why didn't you tell the police what you are now telling the court?', would not be allowed.That is a simple scene which Clause 32 seeks to address". —[Official Report, 23/5/94; col. 532.]That was the way in which the Government had thought out the position. They are now putting forward an amendment to Clause 32 under which that scene is not addressed in the slightest. The situation under Clause 32 is that there was no caution in the flat originally. There 1404 could have been no caution properly administered in the flat because the police at that time could have had no reasonable grounds for suspecting that the defendants, the young men, were guilty of an offence. In those circumstances, if the Government's own amendment is carried, on the scenario as they put it forward in their model scene at the last hearing the proposals now being brought forward by the Government would have had absolutely no effect on the proceedings at the trial. I find that an extraordinary state of affairs. And it demonstrates, I believe, the disastrous consequences of the Government's own proposals.
The present temptation is for the police to leave their caution as late as possible in case the effect of the caution is to discourage a suspect from talking. The effect of the Government's proposals is that the police will be tempted to bring forward the caution as early as possible in the hope either of inducing a helpless suspect to say something or of it resulting in a silence which would then be admissible as the possible subject of comment during the trial.
The idea of the police shouting out the caution at the earliest possible moment for that purpose perhaps gives rise to rather ludicrous results. I have in mind the cartoon in Punch many years ago which showed a bank robber standing on the roof of a bank with the booty in one hand and a machine gun in the other, spraying with bullets the assembled ranks of the police in front of the bank; one brave police officer is shouting out through a loud nailer, "Jones, we'd like you to come to the police station to help us with our inquiries". A similar nonsense is liable to happen if the police are to shout out a caution at the earliest possible moment when they are taking a suspect in order to trigger off the procedures about the comments on silence.
There are further results that will cause trouble. In the circumstances the police may be tempted to say that there was a caution when there was not a caution. There will be controversy at the trial over that. There will be arguments by ingenious counsel that, even if there were a caution, which the defendant will no doubt deny, it was improperly given because it was not appropriate at that stage in the proceedings as the police could not reasonably have suspected that the defendant was guilty of an offence.
There is the situation referred to several times this afternoon already when the question is asked: was the defendant in fact silent? There will be cases in which the police officer will say, "Oh, yes, he was silent", and the defendant says, "No, on the contrary, I said 'Rubbish', but I did not say it very loudly and it may well be that the police officer never heard it". What an absurd situation that is. If the defendant said "Rubbish", then the silence provisions are not triggered off; but if the police officer did not hear him, they are triggered.
There is also the situation in which the police will be tempted, instead of having to make up some confession, simply to say, "The defendant said nothing". That is a perfectly simple deception for the police to carry out. It is not capable of the scientific examination of notebooks and so forth that is now so prominent. The result of that situation is that, unhappily, there will be a resumption of the "battle of the verbals" that has marred our criminal 1405 trials certainly for half a century to my knowledge and no doubt for many years earlier, such as "He said this" —"No, I didn't"; "He said that"—"No, I didn't"; the officer: "You are lying"—"No, I am not"; the defendant: "You are lying"—"No, I'm not". On and on and round and round we go, to the excessive tedium of all and with no encouragement to the administration of justice.
All those consequences will be the result of the Government's amendment. I believe that they can be avoided by a clear, lucid statement of the controlled conditions in which the interview is admissible and the silence, if it happens, is admissible and easily confirmed.
For those reasons I very much prefer the amendment of the noble and learned Lord, Lord Ackner, to the amendment of the noble Earl, Lord Ferrers. I add only that I am sad that the Lord Chief Justice, the noble and learned Lord, Lord Taylor, appears at this stage to some extent to resile from what he said at Committee stage. As I read his comments, he quite clearly said at Committee stage that Clauses 34 and 35:bite only on arrest, when a caution will have been given … At the least, I suggest that Clause 32 should be brought in line with the other two clauses".—[Official Report, 23/5/94; col 523.]I respectfully suggest that on reflection the noble and learned Lord will agree that the words "at the least" and "on arrest" indicate that he had in mind at that time something a little more advanced than the Government now propose. There can be an enormous gap in time between the first caution, given when there are grounds for suspicion, and an arrest, which cannot take place simply on the grounds of suspicion. In those circumstances I ask noble Lords to support in the Lobbies in due course the amendment of the noble and learned Lord, Lord Ackner.
§ Lord Hailsham of Saint Marylebone
My Lords, up to this point I have listened with a great deal of interest to every word that has fallen from the numerous and highly qualified speakers. But all along I have been puzzled about what the ordinary Member of this House is making of the debate and how much of it has sunk in. I myself cannot pretend to be completely innocent of legal qualification at all. However, I was interested in the subject long before I had any legal qualification. I was interested from the time when my father was Attorney-General and my brother wrote a book about the life of Sir Edward Marshall-Hall.
There are conclusions which I venture to put before my noble friends and Members of your Lordships' House which I have formed in the course of a rather long lifetime. There are certain basics that we want to preserve at almost any cost. First, we want to do nothing which, at the end of the day, would undermine the burden of proof that lies on the prosecution to prove its case and the standard of proof, which is to prove the case as we used to say "beyond reasonable doubt". That is the formula that I prefer to any other. Secondly, there is a fundamental difference between the admissibility of evidence and the weight to be attached to evidence after it has been admitted by the tribunal of fact.
So far as concerns the admissibility of evidence, I should like to see as few as possible—I repeat, as few as 1406 possible—technicalities, or ritual dances as I sometimes think of them, taking place. My noble and learned friend Lord Ackner referred to certain words said in an earlier debate in this House which he attributed correctly to Lord Reid; namely, that it is vital that we should be fair to the accused at all stages—but not, I submit, to believe that one is necessarily being fair to an accused by introducing formulae and putting them in an Act of Parliament.
Let me say in parenthesis that when the Bill was sent to this House it contained 122 clauses and was 179 pages long. That is not a short Bill. After Committee stage we have ended up with a Bill which contains 159 clauses and is 192 pages long. We are being swamped in a sea of words. I rather wish that there were fewer of them. We call ourselves a revising Chamber, but we are rather apt to feel that by adding words to a Bill we improve the clarity with which the Act of Parliament will come to be interpreted by the courts. I do not believe that to be true.
Having heard the speeches which have been delivered—no doubt I shall listen to all the speeches that will be delivered hereafter—I must say that I was completely convinced by the words of the noble and learned Lord the Lord Chief Justice. So far as admissibility is concerned, it is vital to stop anything being advanced which has not been fairly obtained. That is done by preventing confessions or records of any kind which have been subject to oppressive treatment by those in a position of authority, including the police. I do not believe that any particular formulae or ritual dances which have to be performed will assist the matter very much. What has to be ensured is that in the infinitely varied circumstances of every case fairness is preserved. If a case is being tried in the Crown Court before a jury, the trial judge ought to protect the accused from unfair treatment, but it is not possible to reduce "unfair treatment" to formulae very easily.
I prefer the argument of the noble and learned Lord the Lord Chief Justice to some of the others that have been put forward. I believe that he gets it right when he says that there must be some kind of code of practice in the context of PACE rather than that it should be set in tablets of stone and handed down from Sinai in the form of a statute. That was a proposition that he put very clearly, with which I wholly agree.
When one has admitted facts or silences, or evidence of any kind, whether it is evidence of speak or non-speak or do or non-do, let us remember that it is first for the tribunal of fact to come to a conclusion on the basis of the evidence whether guilt has been proved beyond reasonable doubt against the person under suspicion or charge. In respect of that question one has to admit that the facts of individual cases are almost infinitely different one from another.
I believe that as legislators we in this House must not try to interfere with the very wide degree of discretion that the trial judge has. He is the person who admits the evidence or not and has to sum up to the jury the kinds of considerations that are relevant to the particular case. I would rather that the trial judge was pretty well free, as he has always been in the true tradition of our common law, but always subject to the paternal 1407 jurisdiction of the Court of Appeal to lay down general rules of guidance for him and to decide in particular cases whether, in the light of the trial judge's behaviour, the conviction, if there be one, is unsafe or unsatisfactory.
I believe that the weakness of the amendments of my noble friend Lord Campbell of Alloway, and those in the names of the noble and learned Lord, Lord Ackner, and his associates, is that, instead of adopting this rule that I regard to be a matter of common sense and logic, there is an attempt to introduce formulae and rigid safeguards of a kind which I believe invariably lead to injustice. It is for those reasons that I support my noble friend Lord Ferrers, but with greater emphasis than I would otherwise have because it happens to be the view of the noble and learned Lord the Lord Chief Justice, for whom I have at least in this context as much respect as the Home Office Minister, who does his work so well and, I hope, has the affection and admiration of all of us for the way he does it.
§ 5 p.m.
§ Baroness Mallalieu
My Lords, under the existing law, in particular the provisions of the Police and Criminal Evidence Act 1984, anyone who is stopped, searched, arrested and taken to a police station to be questioned is protected in a number of important respects from questioning which would otherwise be unfair or oppressive. When he is arrested, the suspect is told that he need say nothing. At the police station he is entitled to legal advice before he is questioned. Before he is questioned a range of provisions comes into force which has been designed to protect in particular the vulnerable suspect from unfairness.
The 1984 Act and the codes of practice which went with it introduced special provisions for those who were mentally disordered, mentally handicapped or mentally incapable of understanding the significance of questions put to them or of making a proper reply. It introduced special provisions for young people and physically handicapped people who were unable to speak, read or hear and those with speech impediments. It introduced special provisions for those with language difficulties who might need an interpreter. It also even contained provisions for those who were unwell or even drunk.
With the greatest respect to the noble and learned Lord the Lord Chief Justice, I cannot accept that this Bill, together with the proposed changes in the codes, contains satisfactory provisions for those people before they reach the police station and can seek legal advice. Under the Bill they are to be told upon arrest—in the words of whatever caution the Home Secretary finally decides upon—that, if they do not mention certain matters at that stage, the court may treat their failure to speak as evidence against them.
Quite apart from the special categories of people to whom I have referred, many people when arrested do not understand their position in law, and they are scarcely likely to be assisted by the proposed changes to the caution. Perhaps the majority are inarticulate. Almost all of them will be frightened. It is often forgotten that, particularly in the case of a violent or 1408 serious crime, these people will be in a state of shock. It is simply not sufficient to say that the court can take that into consideration.
The provisions of this Bill as they stand create an interval between arrest and legal advice at the police station when those vulnerable suspects are to be stripped of the protection of the law which they presently and rightly have. Of the amendments that the House is now considering, it is only those that stand in the name of the noble and learned Lord, Lord Ackner, which restore the protection for that period. With great respect, I commend them to the House.
§ Lord Alexander of Weedon
My Lords, I also support the amendment of the noble and learned Lord, Lord Ackner. I am one of his associates, as described by my noble and learned friend Lord Hailsham. I believe that the safeguards of the noble and learned Lord, Lord Ackner, are a minimum to secure fairness to the accused. With great respect, I do not believe that this has anything to do with setting up ritual dances. It is about something that is much more simple: good policing. I believe that the one question of substance that we have to ask ourselves this afternoon is: should the exercise by a suspect of the right of silence before the formal interview at a police station be held against that suspect? I believe that it should not.
At this stage of the debate I wish to make four points. Everyone accepts that the change that is being made in Clause 32 is important or, as the noble and learned Lord the Lord Chief Justice said, significant. Everyone also accepts that it is as yet wholly untested. Many were anxious, and remain anxious, that it could increase the risk of miscarriages of justice. They include: the Bar, the Law Society, the Criminal Courts Solicitors Association, Justice, with its deep involvement in the criminal law and human rights, and senior prosecuting counsel—I underline "prosecuting"—at the Old Bailey. I add a Royal Commission in 1981 and the large majority of a Royal Commission in 1993, including its chairman, the noble Viscount, Lord Runciman, who is also an associate in proposing this amendment.
I accept that, by contrast, the change was urged by powerful voices: the Home Secretary, the noble and learned Lord the Lord Chief Justice and the police service. They obviously believe that fears about increasing pressure on vulnerable defendants are groundless. I hope that they are proved right, but none of us can yet know. I believe that in this climate it is sensible to have elementary safeguards in place to make sure that police practices are sound and that evidence is properly obtained.
My second point relates to the whole purpose of the change in the law. Those who wish to allow comment on the exercise of silence at early stages of the investigation do so because they wish to limit the opportunity of an accused to spring a surprise defence or have time to think up and fabricate an untrue defence. Surely this is effectively achieved by making this change bite once, after what would still normally be a relatively short interval after arrest, the accused is in the 1409 police station. This will be at a very early stage of the inquiry and would, I should have thought, have satisfied even the most eager investigator.
My third point is that this proposal is no more and no less than good police practice. In recent years it has increasingly been accepted that a suspect should not be questioned in the police station without first being given the right of access to a lawyer. Why? This is in the interests of giving the suspect a fair opportunity to respond and, together with tape recordings, helps to ensure the accuracy of evidence. It is good police practice and it protects good policemen against false allegations of malpractice.
I believe that it is in principle reasonable that citizens should have an unfettered right to decline interrogation until after safeguards are in place. I do not, however, believe that the caution proposed by my noble friend the Minister offers those suspects any protection. It certainly means, as the noble and learned Lord the Lord Chief Justice has said, that the right of silence will only be potentially affected once the person becomes a suspect, so it cuts down the category of those against whom inferences can be drawn. But it does not offer any protection to those who have become suspects.
Moreover, the caution is, in my view, simply downright confusing. It will tell someone that he has a right of silence, or that he need not answer any questions, but that he may suffer if he declines to answer questions. I do not believe that any change in wording which preserves that basically self-contradictory proposition can be satisfactory. Add to that the fact that, as research for the Royal Commission showed, the average IQ of suspects is 82—within the bottom 15 per cent. of the general population. Ten per cent. of those were mentally ill, mentally handicapped or brain damaged. Another 5 per cent. had language problems or were illiterate. It is surely right that, in weighing whether to speak or maintain silence in the face of a somewhat puzzling caution, they should have access to legal advice and that the interview should be recorded. Is it not wrong to encourage, as the government proposal does, interrogation in the street or in the police car before the suspect has been offered legal advice?
My fourth point is that the police, as I understand it, do not share the Home Secretary's desire that adverse inferences could be drawn from silence exercised before the safeguards of tape recording and the offer of legal advice are in place. This morning I had the privilege of speaking in Bournemouth to the conference of the Association of Chief Police Officers. One of my co-speakers was Mr. John Hoddinott, the Chief Constable of Hampshire. He, speaking for ACPO, said that he welcomed the change to allow the inferences to be drawn from the exercise of the right of silence. That is the change which some of us were against but which your Lordships have accepted and which we loyally accept. But Mr. Hoddinott went on to say—and I quote from the copy of his speech which he gave me:But we are careful to put these changes into the context of: a proper interview with properly put questions. That is recorded (and we would be anxious to see video recording brought in as soon as possible) And the suspect having access to proper legal advice".1410 He went on to commend expressly the approach previously taken in debate in this House by the noble and learned Lord, Lord Ackner, including his statement in Committee:But if we are going to make these major changes, proper safeguards are required".—[Official Report, 23/5/94; col. 499]Mr. Hoddinott subsequently expressly confirmed to me that the police did not seek a position in which adverse inferences should be drawn from the maintenance of silence before such safeguards were in place. He has an obvious concern that, once the formal interview has begun, the police should not be required to lay all their cards on the table before asking any questions at all, but I do not understand that to be the. effect of our amendment.
The police are committed to establishing evidence objectively and in accordance with good practice. They, as Mr. Hoddinott explained it to me, would obviously wish the position to be that if, once the formal interview has begun at the police station, the accused maintains silence in the face of the same questions which he had earlier been asked before they got to the police station, inferences could be drawn from that maintenance of silence but not from any earlier maintenance of silence. I believe that to be a reasonable and responsible position. I find it puzzling that the Home Secretary does not seek to pursue that which is regarded as good policing. I have read carefully the evidence and I understand what Mr. Hoddinott said to have been the position maintained by the police before the Royal Commission, which may explain the recommendation of the minority to which I now come.
I said I had four points, but being a barrister by trade and currently a banker, your Lordships will appreciate that I have difficulty in counting. I actually have five points. My final point is to refer to the approach of the Royal Commission and its chairman the noble Viscount, Lord Runciman. The majority of the Royal Commission, as your Lordships know, recommended that there should be no change to the present right of silence. Only the minority supported change, and as the noble and learned Lord, Lord Ackner, quoted from Chapter 4, paragraph 10, the minority made pellucidly plain that it was only questions asked in a formal interview where silence was maintained which would lead to that silence being held against a suspect. So the minority who supported the Government's basic approach would have no truck at all with the present position taken on these amendments.
I know, and your Lordships know because you have heard him, how strongly the noble Viscount, Lord Runciman, feels on this issue. He unavoidably cannot be here today but he has written to me asking me to,not only express on my behalf my support for the amendment but also make the point that the minority of two on the Royal Commission who wished to see the modification of the right of silence were emphatic that only questions asked in a room with audio or video recording and, unless the suspect has specifically refused the opportunity of legal advice, a legal representative present should qualify for possible comment at: trial".So that was the view of the Government's strongest supporters, and they are not with the Government on this issue.
In summary, I believe that this part of the Government's approach shows insufficient respect for 1411 individual liberty. It is not a matter of detail, but of good policing. The Government's approach cuts against sensible police disciplines and practices to which the modern senior police force are so impressively committed. On this issue the Government have already set aside, within an unprecedentedly short space of time, the recommendations of the majority of the Royal Commission. They now seek to ignore the basis on which the minority supported their basic change in the law. That is going too far. I very much urge your Lordships to support the amendment of the noble and learned Lord, Lord Ackner.
§ Lord Rawlinson of Ewell
My Lords, it is with great regret that I totally and utterly disagree with my noble friend who has just spoken. I declared at the time of Second Reading that I had 40 years' practice at the Bar, once being in charge of all the prosecutions in England and Wales, and earlier as a younger barrister, I defended in many criminal cases. I always believed that the inability to comment on an accused's failure to explain or account for a fact when challenged was absurd. When my noble and learned friend Lord Hailsham spoke of a ritual dance, that is what it was. It was a rule in the game and part of the deft footwork. It was part of that abolition of common sense which the ordinary common-sense person who is not a lawyer believes is utterly absurd. Why cannot you say, "Why did you not say that right at the beginning? Why did you not say that when you were asked about it?" That is what the ordinary, common-sense person says. That is exactly what we were prevented from saying. I commended the Government for their courage in ending what was an absurd rule. It was part of the rule of the game.
It is not a great constitutional issue; it was part of the technique of the game played in British criminal trials. That has been corrected. The Government have shown great courage to do so. Having listened to my noble friend the Minister and to the noble and learned Lord Chief Justice I am quite satisfied that sufficient safeguards have been produced in the amendment proposed by the noble Earl. I strongly reject the proposition of my noble and learned friend Lord Ackner and all that was said, alas, with such eloquence by my noble friend Lord Alexander of Weedon.
§ Lord Lowry
My Lords, not for the first time I have listened to the inspiring words of my noble and learned friend Lord Hailsham, which I have heard both in public and in private. What he said—and indeed what my noble and learned friend Lord Rawlinson has just said —reminds us of the basic truth that what is relevant is prima facie admissible in a trial save where it is regarded as either generally unfair, like most hearsay evidence, or unfair in particular circumstances, such as evidence which the judge believes is more prejudicial than probative. Broadly speaking, that is the way in which the courts have made rules of their own.
Now we have rather complicated particulars of Clauses 32 to 35. Someone might say "Why do we bother in having such a complicated approach to an essentially fairly simple problem?" I believe that there is one reason. The courts have not acquitted themselves 1412 very brilliantly in their attitude towards the judge's comments on the failure of the accused to give evidence. I thought that it used to be fairly simple provided the judge behaved himself and did not go overboard. But it seems now that if the judge says anything at all he is almost bound to discourage the jury from drawing some very obvious inferences. Therefore, Clause 33 is an attempt to produce some kind of order. If one is doing that it is very difficult to disregard the fact that, partly due to the cautions which have to be given—and if they mean anything at all they must mean that the accused will not be prejudiced if he says nothing—the Government have, quite bravely, brought a Bill to Parliament to try to adduce some kind of order out of the chaos which I believe started at the trial.
It is sobering to reflect that here we are at Report stage and yet matters of principle are still the main focus. For my part I broadly support Clause 33, but I regard Clauses 32, 34 and 35 with only moderate enthusiasm. For reasons which I shall explain, I consider that if those three clauses are to be enacted that should only happen if we incorporate in the symphony what I might call the variation played by the Ackner quartet. I hope I do no disrespect to the other players. On the other hand, one has to remember that we are talking about a right to comment; we are not talking about the admissibility of evidence of what happened. The two are not synonymous.
I have referred to matters of principle. The innovations proposed, although they do not abolish the right of silence or introduce compulsory self-incrimination or—subject to one point which I shall mention—alter the burden or standard of proof, would introduce a procedural change which has been the subject of active controversy and many reports for over 20 years. A change like that has to be fair and must be seen to be fair. It must be acceptable if the reputation of our criminal law is not to suffer. It must be reasonably effective (I stress the adverb) and it must be workable.
Your Lordships are aware that there are very well-informed and well-intentioned people, both in this House and beyond, who are strongly and genuinely opposed to the whole idea behind Clauses 32 to 35. Their views cannot be set at nought except at great risk to the cause of justice. The reassurance that I venture to offer them is that the trial process will remain in charge of a judge whose aim and business it is to ensure a fair trial whatever rules of procedure are in use. I cannot over-emphasise the importance of really good first-instance judging and of continuous training through seminars for that job which is more demanding, though less well remunerated, than most appellate work. Beyond the judge is the Court of Appeal whose duty it is not to uphold a conviction on indictment unless it is safe and satisfactory. The competence and fairness of the judge and the supervision, where necessary, of the Court of Appeal are all-important whatever the regime.
Unfairness can arise even under a fair system. What Parliament must do is avoid legislating for a system which is itself unfair or which leads easily to unfairness. I submit that Clauses 32, 34 and 35, while not in themselves unfair, will lead easily to unfairness unless amended as proposed. Without the recording and 1413 without the presence of a legal representative, the evidence of silence, on which the prosecution means to rely, may become the equivalent of being "verballed" —if I can use the colloquialism which has already issued today from very learned lips.
At present, even allowing for persons who are vulnerable, I believe that very few innocent people are convicted by the time the judge and jury have done their duty. We must be as sure as we can be that that very small number is not increased. That is why I am worried about Clauses 32, 34 and 35 as they stand. It is different with Clause 33. We are now at trial. The Crown case unfolds. The accused is usually advised. A rational decision can be made. A judge is in charge and, finally, what is proposed in that provision is not new. Only a year after the passing of the 1898 Act, a court in which the first Lord Russell of Killowen presided held that the judge could comment on the accused's failure to use his newly conferred right to testify. Much later we appeared to lose our way and the right of judicial comment became blurred.
Now things can improve. The prosecutor, as he would always have been able to do but for proviso (b), will now be able to comment on the silence of the accused. Defending counsel will speak after the prosecutor, as he did not formerly unless he called no evidence and not even then in the old days in Ireland because all Crown counsel assumed the mantle of the Attorney-General. Thus we have at last followed Scotland in what I was brought up to believe is only one of the many respects in which Scots criminal procedure is superior to ours. Finally, the judge can hold the balance instead of appearing to be the Crown's agent as heretofore. I have no major worries about Clause 33.
My last general point is this: is the right of comment under Clause 33 worth introducing or, more accurately, worth clarifying? The answer must be yes, if only for certainty and uniformity. But I go further. This House, in its appellate capacity, has shown in the Northern Ireland case of Murray that the corresponding Article 4 can be properly used to turn a provable case into a proved case. Some Northern Ireland statistics could lead to the conclusion that Article 4 is, and Clause 33 will be, of no real value. On that I make two points. First, the pool of figures is too small to support reliable conclusions. The other point is that non-jury trial, where the judge is not giving perhaps misleading directions to the jury, must be distinguished from the jury trial at which Clause 33 is primarily aimed. So careful are most trial judges at present that when they speak juries are discouraged from drawing any inferences against an accused even where it would be logical and proper to do so.
Perhaps I may seek your Lordships' further indulgence to mention briefly a couple of points arising on the text of the amendments. On Clause 32, while I agree with my noble and learned friend Lord Ackner and his allies I do not quite approve of the requirement that a record, other than a recording, has to be authenticated by the suspect's lawyer. That is a clear advantage. However, it seems to me that there will be times when the lawyer, without acting improperly, may refuse to authenticate. I suggest that if he will not do 1414 that, it should be enough to give him a copy of the record and still give evidence about the accused's silence.
In Clauses 32,34 and 35, I note the use of the silence procedure to create a prima facie case. I know that that can be logical and even compelling, but I feel that that idea erodes the standard of proof hitherto demanded for a prima facie case. I would harness that in this way: that is all the more argument for having great precautions about the use of pre-trial silence when one considers the important use that can be made of it under those clauses.
It can be said that the amendment may lead to complications and even to great expenditure. On the other hand, I would rather dispense with Clauses 32, 34 and 35 altogether than do without the amendments. There is another point which I gleaned from what was said by the noble Lords, Lord Wigoder and Lord Alexander. Such an amendment is designed to help not only the suspect. A very important reason for supporting my noble and learned friend, based not only on my experience but—I hope that I shall not sound didactic in saying so—on the experience of every judge who has tried criminal cases or sat on appeal—is that if something is logically probative and it happens, it is important to be able to prove that it happened and that it happened in circumstances which cannot be called into question. The caution given before a confession statement is an elementary example. A striking example is what happens in Jamaica where a confession is taken in front of a magistrate who countersigns the statement. That must put an end to a great many controversies as to whether the statement was made and whether It was made in acceptable circumstances.
Recordings and the presence of legal advisers are other matters which help to copperfasten some piece of evidence which has been elicited. There is a great deal to be said for the proposition that one should sacrifice the immediate advantage which can be obtained in the absence of those precautions in return for a greater gain —that when something is obtained, it will then stick, if I can put it that way. That is fair to all sides, including the police who have taken the statement, and it is in the general interests of justice.
Finally, I refer briefly to something which could be relevant to Clause 33.I spoke on an earlier occasion of the debates on the Criminal Evidence Bill in 1898 when strong opposition was voiced, particularly by many who had much experience at the Criminal Bar, on the ground that to permit the accused to give evidence was forcing him to testify and thereby destroying his right of silence. But is it not clear that the 1898 reform was perfectly fair to the accused and positively beneficial to the innocent? It is not a true parallel because Clause 33 is not intended to benefit the accused. It is, however, well fitted to differentiate between the guilty and the innocent.
As the noble Lord, Lord Campbell, said, it is true that fair means must be used to convict the guilty. It is quite unacceptable to convict a guilty man by an unacceptable procedure. But it is also true that we should remember the interests of innocent people. The fact that all this reform —if that is the word—will be inclined to get 1415 people speaking earlier must benefit innocent people who otherwise would be advised, and might feel it wise, not to say anything until a much later stage.
§ Lord Annan
My Lords, I rise only because at the beginning of his speech the noble and learned Lord, Lord Hailsham, asked himself what impression the whole debate would have on someone who was a layman and not learned in the law. No one could be more of a layman in the law than I am. I know very, very little about criminal law, and absolutely nothing about the practice of criminal law in the courts. But I ask myself this: why was this Royal Commission set up? It was set up because of certain grave misjudgments and miscarriages of justice in our courts which brought our legal system into some disrepute.
The Royal Commission adjudicated on that matter, and gave its opinion. Royal Commissions are not always right, and so I ask myself: what do those who practise at the Bar and see criminals and people who are not criminals appear before them feel about this? I listened most particularly to what the noble Baroness, Lady Mallalieu, said. I was impressed. That is why I shall support the amendment tabled by the noble and learned Lord, Lord Ackner.
§ Lord Spens
My Lords, after two hours talking about the front end of Clause 32, I shall now focus briefly on the business end of Clause 32; that is, the proper inferences to be drawn. Before I do so, perhaps I may ask the Minister why it is that in the Criminal Evidence (Serious Fraud) (Northern Ireland) Order 1988 the matching clause is followed by a subsequent rider which reads:on the basis of such inferences treat the failure as, or as capable of amounting to, conoboration of any evidence given against the accused in relation to which the failure is material".Why has that rider been left out of the Bill?
I come to the word "proper".' It is a qualifying adjective. The bugbear of my life for the past seven years has been qualifying adjectives. Qualifying adjectives probably add up to 10 per cent. of all legal costs. They are difficult to define. When I tried to define what was meant by "proper" I asked several people. I even consulted the dictionary. I could not find a universal answer. In fact, if one looks at the Concise Oxford Dictionary one finds that there are 11 different definitions of the word "proper", starting with, "proper motion of stars", and going right through to, "She's a proper Victorian", which I think represents the demands of society, and perhaps that is where the word in this clause lies.
I have a letter from the head of the Criminal Justice Bill Unit, Mr. Paul Lynch, who, I believe, defines what the Government mean by the word "proper". It goes like this:What is proposed is simply that courts should be allowed to draw common sense inferences from a suspect's decision to remain silent when questioned about certain facts".Whose common sense are we talking about? Is it judicial common sense? It has never been great. Is it public common sense, prosecution common sense or Government common sense? Is it just common sense? Is that what the word "proper" means? If it is what the 1416 word "proper" means, then will the Minister define what he thinks the word "proper" should mean in Hansard to avoid considerable expenditure in tripping along to the Court of Appeal (Criminal Division) to work it out?
My second point is about inferences. There are two types of inference in a criminal trial. There is a positive inference, and an objective inference which comes, as it were, from positive evidence, from which is deduced a logical conclusion. I suppose that the clearest example of that is a fingerprint at the scene of a crime from which it can clearly and logically be deduced that whoever the fingerprint belonged to was present at the scene of the crime at some stage, although not necessarily at the time of the crime. Further evidence would be needed for that.
For many years that has been how our courts have largely operated. But we have now moved into the area of negative inference and subjective inference. That is very much more difficult and dangerous. I have seen it used against me. I can remember occasions when the lack of any written evidence led counsel to say that that lack of evidence was evidence of fraud. He used it by a sound bite: secrecy is the badge of fraud. That sound bite was carried in every national newspaper the following day. It was of course nonsense. It was a nonsense inference. Secrecy has nothing whatever to do with fraud. It did however convict four people. It was probably the only reason they were convicted.
We are using the same argument with the phrase, "may draw proper inferences". The badge will not be secrecy. It will be, "Silence is the badge of guilt". That is what people will be branded with. Presumably that is what the Government wish to impose by passing the Bill. If we are going to go down the route of negative inferences, the judge should direct the jury as to the extreme danger of following negative inferences. It almost certainly follows from a false syllogism at some stage in the argument. I hope that the Minister will consider my amendment along those lines.
§ 5.45 p.m.
My Lords, if I may have the leave of the House, I should like to draw just one or two matters to your Lordships' attention. Perhaps I may deal first with the amendments tabled by the noble Lord, Lord Spens. Of course their main effect would be to provide a statutory duty for judges to direct juries as to why they should draw an inference. Our view is that judges welcome occasional guidance from Parliament as to the performance of their duties, but I feel that the amendments would go a trifle too far. They might also trespass upon the jury's responsibility to determine the facts of the case. Nothing in the Bill is intended to alter the obligation upon a judge to deliver a summing up to a jury, but I believe that the judges are best able to decide how to discharge that role. A judge might, for example, direct a jury whether, in law, the circumstances were such that inferences could be drawn under the terms of the legislation that we propose. A judge would have a duty to rule against any prosecution comment in circumstances where the law does not allow inferences to be drawn.
1417 The noble Lord asked why the Bill does not contain the provision of corroboration contained in the Criminal Evidence (Serious Fraud) (Northern Ireland) Order 1988. It was left out of the Bill because the rules on corroboration in England and Wales are being modified by Clauses 30 and 31.
I shall resist the temptation to define the word "proper". It is a word which appears often in legislation. As the noble Lord knows only too well, it is a matter for the courts, not a Minister, to define.
What we are really talking about here are the proposals relating to the right of silence. We do not propose to take away that right in the sense of forcing people to answer questions, but rather to allow a court or a jury to use its common sense in drawing inferences if a person chooses not to answer. That is the simple proposition.
I agreed with my noble and learned friend Lord Hailsham when he said that we were deluged with words and that there is no point trying to put things right just by cascading ourselves with more words. I hope that he will understand that the Government are not cascading your Lordships with words; we have added only two. We have added only two words to make a significant difference. I was pleased that the amendment tabled in my name has the approval of my noble and learned friend, even though he said the main reason for his approval was that he preferred the argument of the noble and learned Lord the Lord Chief Justice to mine. I do not at all blame my noble and learned friend Lord Hailsham for that. I should be happy to come second, third or 105th to the ability of the noble and learned Lord the Lord Chief Justice to put a complicated legal argument clearly. All we are doing is to say that a person who is asked a question and who refuses to answer should be cautioned before that evidence can be used. That is not bad or erroneous. The noble Lord, Lord Irvine, said that we should be preventing miscarriages of justice. Perhaps I may remind him that it is just as much a miscarriage of justice when guilty people go free and untried as when innocent people are convicted.
The noble Lord, Lord Irvine, also asked what the Government were going to do about the Criminal Cases Review Authority. The noble and learned Lord the Lord Chief Justice answered that question very well by saying that it was totally irrelevant. The noble Lord also asked me whether there would be legislation in the next Session. He should know only too well that I would not anticipate what might be in the Queen's Speech.
The noble and learned Lord the Lord Chief Justice said with immense conviction that Amendment No. 37 in the name of the noble and learned Lord, Lord Ackner, would remove the right or the ability to take into account a person's silence until that person had reached the police station. The noble and learned Lord said that that could not be right. If confessions can be accepted, why should not silence be accepted? The noble and learned Lord the Lord Chief Justice said that our amendment would result in a significant improvement in the procedure. Those were impressive and weighty words and your Lordships should take note of them.
I turn for half a moment to what was said by the noble Lord, Lord Wigoder. He said that my amendment was 1418 unhappy. I cannot think why on earth he should have thought that, because it is not so. The noble Lord said that it was an ill-thought-out procedure. The procedure was thought out specifically after your Lordships had debated the matter in Committee. We considered what your Lordships had said and came forward with this amendment. Therefore, I do not believe that it is ill thought out.
The noble Lord spent a great deal of his speech quoting from my speech in Committee. I was deeply flattered that he should have considered it worth repeating. He castigated me for producing a scenario in Committee and said that he knew that all the best brains in the Home Office would find some happy scenario to produce. I did produce a scenario and I have produced another today, for the simple reason that often a mere layman such as myself finds a simple scenario easier to understand than the more complicated language which some lawyers use. I thought that even those of your Lordships who were well versed in the law would be able to understand the niceties of the issue if a simple little scenario was produced.
We can discuss this matter for ever, but we must reach a conclusion. We are discussing whether it should be possible for the court to draw such inference as it thinks fit when a person decides to remain silent at the scene and after a caution or whether it should be taken into account only after the suspect has gone to the police station and had the advice of a lawyer, if he wants that. In my view, the amendment tabled by the noble and learned Lord, Lord Ackner, which subscribes to that latter point, is too restricting. I agree with my noble and learned friend Lord Rawlinson that it is absurd not to take into account the fact that an accused has decided to remain silent. In order to take that matter into account there should be proper safeguards. I suggest that those safeguards are apparent in Amendment No. 34.
§ Lord Campbell of Alloway
My Lords, to my mind the undertakings given by my noble friend Lord Ferrers are wholly sufficient and satisfactory. The broad effect of the safeguards sought by Amendment No. 32 will be provided by codes of practice which will be amended after statutory consultation and will be subject to the affirmative resolution of both Houses of Parliament.
I am grateful to the noble and learned Lord the Lord Chief Justice and to my noble friend Lord Ferrers for their support of the spirit of my amendment. I accept unreservedly that flexibility under codes as proposed, albeit somewhat late, is far preferable to the rigidity of a statute as proposed in Amendment No. 32, which I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 33 not moved.]
§ Earl Ferrers moved Amendment No. 34:
Page 21, line 12, after ("questioned") insert ("under caution").
§ On Question, amendment agreed to.
§ [Amendments Nos. 35 and 36 not moved.]
§ Lord Ackner moved Amendment No. 37:
Page 21, line 39, at end insert:
("( ) Subsections (1) and (2) above do not apply unless—
§ The noble and learned Lord said: My Lords, I wish to move this amendment. Although the matter has been fully debated, this is my only opportunity to make some short comments in answer to what was said following my address to the House on Amendment No. 32.I have few points to make and I can do so in a couple of minutes.
§ The first point relates to the happy phrase of my noble and learned friend Lord Hailsham—and so many happy phrases come from him—the "ritual dance". That is not how the issue of silence and safeguards was viewed by him, Lord Salmon, Lord Dilhorne, Lord Diplock, Lord Reid and Lord Widgery in the debate some 23 years ago. They stated in trenchant terms that they would have none of the suggestion made by the Criminal Law Revision Committee—which is the same as we have today—without proper safeguards. As none were produced that was the end of those proposals. "Ritual dance" is a happy phrase which is totally irrelevant to this debate.
§ My second point relates to the police acceptance of our amendment, as indicated by the noble Lord, Lord Alexander. I make only one additional point. When the matter was debated in Committee on 23rd May, the noble Lord, Lord Windlesham, pointed out that the safeguards we proposed have a double effect. They not only ensure fairness to suspects who are weak, vulnerable and confused, but they provide protection to the police, and that is why I understand they support it. They avoid later challenges, which are lengthy, time-consuming and costly, to the veracity of police accounts of what was said or not said on the doorstep, in the police car or at the scene of the alleged crime. The noble Lord's speech is at col. 499 of Hansard.
My third and final point is in answer to the rhetorical question of my noble and learned friend the Lord Chief Justice. He asked, "Why are we so chary of drawing inferences from silence?". I offer him the observation which was made by Lord Reid in a debate some 20 years ago. He said:
The reason why the right to silence has grown up is that in the past times it was impossible to be in the least sure that interrogation would be fairly done".
§ We will skip the next few lines. Lord Reid continued: "The purpose of the safeguards is not to give the guilty man a sporting chance; it is to see that the innocent man is as fully safeguarded as human ingenuity can achieve".—[Official Report, 14/2/73; col. 1613.]
§ The fact that the majority of the members of two Royal Commissions rejected outright what is now proposed, the fact that the Home Secretary's working party not a few years ago did likewise and the fact that what is proposed does not add the protection which would have been accepted even by the minority of those two Royal Commissions make it quite clear that this 1420 provision fails quite hopelessly to safeguard fully an innocent accused as far as human ingenuity can achieve —the Lord Reid test. Therefore, I commend the amendment. I beg to move.
§ 6 p.m.
§ On Question, Whether the said amendment (No. 37) shall be agreed to?
§ Their Lordships divided: Contents, 91; Not-Contents, 143.1421
|Ackner, L. [Teller.]||Kirkwood, L.|
|Addington, L.||Lester of Herne Hill, L.|
|Alexander of Weedon, L.||Listowel, E.|
|Annan, L.||Llewelyn-Davies of Hastoe, B.|
|Archer of Sandwell, L.||Longford, E.|
|Ashley of Stoke, L.||Lovell-Davis, L.|
|Attlee, E.||Lowry, L.|
|Beaumont of Whitley, L.||Mallalieu, B.|
|Bonham-Carter, L.||Mayhew, L.|
|Boston of Faversham, L.||McIntosh of Haringey, L.|
|Bottomley, L.||McNair, L.|
|Broadbridge, L.||Merlyn-Rees, L.|
|Campbell of Eskan, L.||Monkswell, L.|
|Carter, L.||Monson, L.|
|Castle of Blackburn, B.||Morris of Castle Morris, L.|
|Cledwyn of Penrhos, L.||Morris, L.|
|Clinton-Davis, L.||Mustill, L.|
|Cocks of Hartcliffe, L.||Ogmore, L.|
|Craigavon, V.||Peston, L.|
|Dahrendorf, L.||Pitt of Hampstead, L.|
|Diamond, L.||Prys-Davies, L.|
|Donaldson of Kingsbridge, L.||Rea, L.|
|Donoughue, L.||Redesdale, L.|
|Dormand of Easington, L.||Richard, L.|
|Falkender, B.||Ritchie of Dundee, L.|
|Falkland, V.||Rochester, L.|
|Foot, L.||Rodgers of Quarry Bank, L.|
|Gilmour of Craigmillar, L.||Russell, E.|
|Gould of Potternewton, B.||Serota, B.|
|Graham of Edmonton, L.||Shaughnessy, L.|
|Halsbury, E.||Spens, L.|
|Hamwee, B.||Stallard, L.|
|Harris of Greenwich, L.||Stedman, B.|
|Haskel, L.||Stoddart of Swindon, L.|
|Hilton of Eggardon, B.||Strabolgi, L.|
|Hollis of Heigham, B.||Taylor of Blackburn, L.|
|Holme of Cheltenham, L.||Tenby, V.|
|Howell, L.||Thomson of Monifieth, L.|
|Howie of Troon, L.||Tordoff, L.|
|Hylton-Foster, B.||Turner of Camden, B.|
|Irvine of Lairg, L.||Wedderburn of Charlton, L.|
|Jay of Paddington, B.||Wharton, B.|
|Jay, L.||White, B.|
|Jeger, B.||Wigoder, L.|
|Judd, L.||Williams of Elvel, L.|
|Abinger, L.||Blyth, L.|
|Addison, V.||Boardman, L.|
|Ailsa, M.||Boyd-Carpenter, L.|
|Aldington, L.||Brabazon of Tara, L.|
|Alexander of Tunis, E.||Bridgeman, V.|
|Allenby of Megiddo, V.||Brougham and Vaux, L.|
|Annaly, L.||Burnham, L.|
|Archer of Weston-Super-Mare, L.||Burton, L.|
|Arran, E.||Cadman, L.|
|Astor of Hever, L.||Campbell of Alloway, L.|
|Astor, V.||Campbell of Croy, L.|
|Atholl, D.||Carnock, L.|
|Balfour, E.||Carr of Hadley, L.|
|Barber, L.||Chalker of Wallasey, B.|
|Belhaven and Stenton, L.||Clanwilliam, E.|
|Bethell, L.||Clark of Kempston, L.|
|Blatch, B.||Colnbrook, L.|
|Colville of Culross, V.||Mountgarret, V.|
|Cork and Orrery, E.||Mowbray and Stourton, L.|
|Courtown, E.||Murton of Lindisfarne, L.|
|Craigmyle, L.||Nelson, E.|
|Cranborne, V.||Newall, L.|
|Crathorne, L.||Norrie, L.|
|Cross, V.||Orkney, E.|
|Cumberlege, B.||Orr-Ewing, L.|
|Dean of Harptree, L.||Oxfuird, V.|
|Denham, L.||Park of Monmouth, B.|
|Denton of Wakefield, B.||Parkinson, L.|
|Derwent, L.||Pearson of Rannoch, L|
|Dixon-Smith, L.||Peel, E.|
|Downshire, M.||Platt of Writtle, B.|
|Eden of Winton, L.||Plummer of St. Marylebone, L.|
|Ellenborough, L.||Rankeillour, L.|
|Elles, B.||Rawlinson of Ewell, L.|
|Elphinstone, L.||Reay, L.|
|Elton, L.||Renton, L.|
|Ferrers, E.||Renwick, L.|
|Fraser of Carmyllie, L.||Rodger of Earlsferry, L.|
|Gardner of Parkes, B.||Romney, E.|
|Geddes, L.||Salisbury, M.|
|Gisborough, L.||Saltoun of Abernethy, Ly.|
|Glenarthur, L||Savile, L.|
|Goold, L.||Seccombe, B.|
|Goschen, V.||Selborne, E.|
|Gowrie, E.||Sharples, B.|
|Gray of Contin, L.||Simon of Glaisdale, L.|
|Hailsham of Saint Marylebone, L.||Skelmersdale, L.|
|Halifax, E.||Soulsby of Swaffham Prior, L.|
|Hanworth, V.||St. Davids, V.|
|Harding of Petherton, L.||St. John of Bletso, L.|
|Henley, L.||Stanley of Alderley, L.|
|HolmPatrick, L.||Strafford, E.|
|Hothfield, L.||Strange, B.|
|Howe of Aberavon, L.||Strathcarron, L.|
|Howe, E.||Strathclyde, L.|
|Jenkin of Roding, L.||Strathmore and Kinghorne, E.|
|Knutsford, V.||Sudeley, L.|
|Leigh, L.||Suffield, L.|
|Lindsey and Abingdon, E.||Swinfen, L.|
|Long, V.||Taylor of Gosforth, L.|
|Lucas of Chilworth, L.||Thomas of Gwydir, L.|
|Lyell, L.||Trumpington, B.|
|Mackay of Ardbrecknish, L.||Ullswater, V. [Teller.]|
|Mancroft, L.||Vaux of Harrowden, L.|
|Marlesford, L.||Vestey, L.|
|McColl of Dulwich, L.||Vivian, L.|
|Merrivale, L.||Wakeham, L. [Lord Privy Seal.]|
|Mersey, V.||Wedgwood, L.|
|Miller of Hendon, B.||Wise, L.|
|Milverton, L.||Wolfson, L.|
|Mottistone, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.9 p.m.
§ Clause 34 [Effect of accused's failure or refusal to account for objects, substances or marks]:
§ [Amendments Nos. 38 and 39 not moved.]
§ Clause 35 [Effect of accused's failure or refusal to account for presence at a particular place]:
§ [Amendments Nos. 40 and 41 not moved.]
§ Clause 36 [Interpretation and savings for sections 32,33, 34 and 35]:
§ Earl Ferrers moved Amendment No. 41A:
Page 25, line 35, after ("32(2)") insert (", 34(2) or 35(2).").
§ On Question, amendment agreed to.
§ [Amendment No. 42 not moved.]
§ The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 43:1422
After Clause 38, insert the following new clause:
§ Jury service: disabled persons
§ "Discharge of summonses to disabled persons only if incapable of acting effectively as a juror.
9B—(1) Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under this Act, that on account of physical disability there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge.
(2) The judge shall deteimine whether or not the person should act as a juror; but he shall affirm the summon sunless he is of the opinion that the person will not, on account of his disability, be capable of acting effectively as a juror, in which case he shall discharge the summons.
(3) In this section "the judge" means any judge of the High Court or any Circuit judge or Recorder.").
§ The noble and learned Lord said: My Lords, as your Lordships may recall, I indicated in Committee that the Government supported in principle an amendment moved by the noble Lord, Lord Ashley of Stoke:, which sought to create a presumption that people with physical disabilities should serve on juries when summoned.
§ The amendment seeks, as did the noble Lord's, to restate the present law to create an absolutely clear presumption in favour of people with disabilities serving on juries. It creates a new section dealing specifically with the arrangements for discharging a person with a physical disability. It states clearly that the judge should affirm a jury summons unless he is of the opinion that such a person could not act effectively. We hope that that will send a helpful signal to the courts.
§ At the same time, I should emphasise that the amendment does not affect the existing arrangements whereby a person with a disability may apply for and be granted excusal by the summonsing officer if there is good reason for that person not serving. I beg to move.
§ Lord McIntosh of Haringey
My Lords, before the noble and learned Lord Advocate sits down, does he not also wish to speak to Amendment No. 44 and the later amendments which are grouped together?
§ Lord Rodger of Earlsferry
My Lords, I am obliged to the noble Lord. Perhaps that would be the simplest way to deal with the matter.
Amendment No. 44 relates to another matter which arose in Committee. On that occasion, I indicated to the noble and learned Lord, Lord Archer of Sandwell, that the Government accepted in principle his amendment on excusal from jury service on religious grounds. I hope that the amendment now before the House answers the point that the noble and learned Lord made at that time. We believe that it will allow for greater certainty and consistency in the way that applications for excusal on religious grounds are dealt with by the courts. Those two amendments are the only ones in the group to which I am able to speak.
§ Lord Archer of Sandwell
My Lords, I should like to speak to Amendment No. 44. I, too, participated in the debate which led to the tabling of Amendment No. 43. In relation to both amendments, I should like to thank the noble and learned Lord for doing precisely what we asked him to do. Amendment No. 44 has precisely the formulation that I had in mind. The noble and learned Lord will have the gratitude of those most 1423 immediately affected and will also have earned the gratitude of the many who will never even know the contribution that he has made to ensure that they receive a fair trial. As regards both amendments, it is obvious that the Government have listened to the argument and changed their mind. I hope that they enjoyed the experience and that they will now decide to do so more often.
§ 6.15 p.m.
§ Lord Ashley of Stoke
My Lords, I should like to speak to Amendments Nos. 43, 88A and 89.I am most grateful to the noble and learned Lord for bringing forward Amendment No. 43. It is usual for me to cross swords with his department on some issues, but on this occasion I should like to hand a bouquet to the noble and learned Lord because I believe that that amendment represents a very considerable advance.
I am glad that the noble and learned Lord has included all disabled people in the amendment. It is important that the discrimination that they have suffered should be dealt with effectively by the Government. At present I am primarily concerned about deaf people as regards the amendment. There are very few deaf people; in fact, there are no deaf people who are able to serve on juries and very few disabled people who are able to do so. That is most remarkable when we consider the assurances that we very often receive from Ministers about the present situation.
A classic case of the exclusion of a deaf person from jury service was that of Elaine Heath. That case was well publicised and no doubt the noble and learned Lord will know all about it. Elaine Heath had computer-aided transcription available to her. Even though she could follow perfectly all the proceedings of the court, the judge in his wisdom decided that she was not fit to be a juror. I believe that that was a clear case of discrimination against a disabled person and probably a misunderstanding by the judge. I hope that such a situation can be avoided in the future.
I fully accept that it is the judge who must decide whether or not a person will serve as a juror. Indeed, only a judge can make that decision. However, the problem is that some judges have very old-fashioned ideas about deaf people and most outdated ideas about disabled people in general. Sometimes they are not aware of the developments in the measures that can be used to assist deaf and disabled people. I should have thought that very few judges have actually used computer-aided transcription; that is, the kind of thing that I use in this House. It is a most wonderful piece of equipment and it means that there is total understanding of what is going on. Yet Elaine Heath was denied by that judge the right—and it is a right—to take part in jury service.
The problem is that too many judges tend to equate disability with a lack of general ability. That idea is two or three decades out of date. Perhaps the noble and learned Lord could send a polite note to judges on the matter. I do not know what his remit is, but if he cannot do so, perhaps he could take part in a few Middle Temple dinners. After the third glass of port, he could 1424 probably remind the judges of the best thing to do when they are faced with disabled people who are applying to be jurors or applying for any other role in the courts.
The amendment requires the judge to presume capability. That is of great importance. I say that because, without the amendment, judges would still tend to view disabled and deaf people through the wrong end of the telescope; in other words, they would still see them as little people lacking in ability, and so on. The amendment puts the matter right. I must say that I found the noble and learned Lord to be most understanding during the early stages of the Bill. True to his word, he has now come forward with a very valuable amendment. But—and I always add a "but" when praising a Minister —even now the provisions depend upon the perception of the very same judges who have made mistakes in the past. There is still no right of appeal and no right to request the reasons for rejection. If the noble and learned Lord could help on this matter I should be most grateful.
I should also be grateful if the noble and learned Lord would draw the attention of the judges to the amendment that he has moved. I say that because it is most important to disabled people. Further, perhaps he could draw the judges' attention to the debate that led to the tabling of the amendment. I do not say that because I believe my words to be so important; indeed, there were far more important speakers in the previous debates whose words of wisdom should also be heeded by the judges.
I have a further question for the Minister. Will he kindly monitor the judges' decisions for at least five years, and preferably five-and-a-half or six years? Will he request the judges voluntarily to give reasons for rejecting disabled people? That is an ordinary, reasonable, modest request. I would be grateful if he would do that. If the noble Minister is unable to do that, I thank him in any case because I am grateful for the constructive way in which he has dealt with this problem which troubles and worries disabled people and, more particularly in this case, deaf people.
I shall say a few brief words—I do not like long speeches —on Amendments Nos. 88A and 89. I shall leave Amendment No. 89 to the noble Lord, Lord Swinfen, not only because he is better informed than I, better looking than I and more eloquent than I, but because the amendment is in his name. I just wish to add to what he will probably say. I think his amendment is important because it will make provision for disabled people via the code of practice. At present they suffer a great deal of inconvenience and even discrimination.
I am afraid my final point will take about four minutes. I do not like people who refer to their final point eight times, but this is definitely my final point. On this question of the code of practice for deaf and hard-of-hearing people, I must say that without sign language interpreters, or other forms of communication support, profoundly deaf people are cut off from the proceedings. Inevitably, injustice is bound to result. Ministers are always reassuring about the situation and they emphasise what is being done. The Home Office and the Lord Chief Justice's department believe that the present provision is adequate. They have some fine civil servants working for them who are also very helpful. 1425 But I have to tell the Minister that there are serious problems despite the belief of the Home Office and the Lord Chief Justice's department that the problems have been virtually solved. For example, only a small number of courts and police stations have adequate provision. There is widespread confusion about what is available and about who pays for these things.
I know that payment is no problem for deaf millionaires. I do not know many deaf millionaires but I am pretty sure they would not be worried if they had to go to court for whatever reason. But the Home Secretary told me on 26th April of this year that interpreters are paid from public funds. However, the Royal National Institute for the Deaf understands that even in criminal courts payment is at the discretion of the court. Why should that be so? Why should payment be discretionary? This is a basic requirement for deaf people and it should be provided automatically. If the noble Minister can be as helpful on this as he has been on the previous occasion, I should be grateful.
That is the position as regards the criminal courts, but what about the civil courts? Provision depends upon the availability of legal aid. That means that millions of people are denied the measures I am discussing. I am sure the Minister will not be too happy about that. I know that cost is a grey area. In view of the kindness of the Minister—he has been very helpful indeed on this Bill and I appreciate that—I should like to ask him to say who has to pay for interpreters for deaf people. No one really seems to know. If he could advise us on that, I would be very grateful. What is the justification for the decision on that matter?
I am glad that the authorities now realise that deaf people need interpreters. However, what they do not realise is that there are different forms of interpretation. Some deaf people need sign language interpreters, some need lip speakers and some need the kind of computer-aided transcription that I have mentioned. Providing the wrong kind of facility is the equivalent of offering a Frenchman a Spanish interpreter, or an Englishman a Chinese dictionary. Neither is very helpful. Therefore, it is important to be precise about the kind of problem one is dealing with and about the kind of help that is offered.
I hope I may refer to a remarkable case as the House is entitled to know exactly how I justify my claim about deaf people. Mrs. A is a deaf woman from whom a large sum of money was stolen by a man. For her this was an absolutely crucial case. She wrote down her complaints for the judge. It was only when she was in the witness box that she was told that she could have a sign language interpreter. However, she could not un-derstand sign language. She had been offered the wrong kind of help. She struggled through a cross-examination conducted by a truculent defence barrister. It so happened that a woman from Victim Support was present and able to help. With that person's assistance Mrs. A struggled through the cross-examination. But without that assistance from Victim Support the lady would have been forced to struggle alone, faced by an intimidating defence counsel who would not even look at her to put questions. The lady did not even understand the verdict. That is clearly a case of injustice. The case 1426 was so important to her that she asked stenographers for a full report. She was told that would cost her £800 a day. She could not afford that. How can one justify that kind of treatment?
I wish, in 30 seconds, to tell the House of the startling case of Mr. B who sued for medical negligence. That is difficult at the best of times. Anyone who takes on doctors unless he is a skilled legal Member of this House or some similar luminary is a brave man. However, the chap I am discussing sued for medical negligence. He was totally deaf, had double vision and brain damage and was unable to walk unaided. As the courtroom was on the top floor he could only attend in the courtroom for one day. He needed a transcript but he was told it would cost £6,000 to £8,000. When he asked his lawyer to help he was sent a scribbled illegible note from the solicitor's clerk which contained nothing about the judge's summing up. He was told that he had lost his case and that he could not appeal, but he does not know why. That man, like the woman I mentioned, was denied normal justice because of disability.
Those are but two examples of gross discrimination. I repeat my thanks to the noble Minister because I appreciate the way he has dealt with this matter. He will not be able to meet all my requests because they are a little complicated and demanding. I realise that, but in thanking the Minister I ask him to try to answer some of the questions that I have put to him. If he is unable to do so, perhaps he could write to me when convenient
§ Lord Ashbourne
My Lords, as I had my name to the original Amendment No. 43 perhaps I may briefly support the noble and learned Lord, Lord Archer of Sandwell, in thanking the Government most sincerely for taking this amendment on board and moving it tonight. It will give tremendous satisfaction to many people outside this Chamber who feel strongly on this matter. I feel most encouraged that, on this occasion anyway, the Government have proved (hat they are a government who will listen to sincere cases put forward in your Lordships' House and, I dare say, even in another place. If they are persuaded by the argument they will take the issue on board and move an amendment themselves. That, frankly, to me is very encouraging. So often one has the feeling—noble Lords must judge for themselves whether or not they agree with me, but I do not speak particularly of this Government—that governments sometimes take the attitude: "Do not bore us with facts. Our mind is made up. We are going to drive it through willy-nilly". However, on this occasion, the Government have shown quite clearly that that is not the case. I wish most sincerely to thank the Government for taking on board Amendment No. 43.
§ 6.30 p.m.
§ Lord Swinfen
My Lords, I greatly welcome my noble and learned friend's amendment, Amendment No. 43, because people with disabilities should be considered as perfectly ordinary people and their disabilities should not be allowed to become a handicap. My amendment, Amendment No. 89, is grouped with that amendment. The fact that we shall probably put my 1427 noble and learned friend's amendment into the Bill tonight means, in my view, that the need for a code of practice for all disabled court users is all the greater. The fact that my noble and learned friend is willing to put the amendment in the Bill emphasises that fact.
There are many problems relating to access to courts for disabled people. That applies to people with all kinds of disabilities and to all business in the courts, either as witness, defendant or lawyer. The Crown and county courts, as the House will know, are covered by the Lord Chancellor's Department's court standards and design guide, which stipulates that all new courthouses and those undergoing significant alterations or extension must comply with Part M of the building regulations. However, the Lord Chancellor's Department's guide to facilities for disabled people in Crown and county courts also shows that current provision is abysmal. At 44 per cent. of courts the main entrance is not accessible; 59 per cent. have no toilet facilities for disabled members of the public; and only 6 per cent. have facilities for the deaf or people who are hard of hearing. In addition, Crown and county courts have court immunity, which means that they are not subject to the usual building control process.
When Wolverhampton combined court was built some two years ago, no plans were submitted to the planning authority. Only after the court had been built was inadequate provision brought to light. When a disabled solicitor attended the court on behalf of his client he found that he was unable to use the lavatory facilities because he could not gain access. Nor could he move his wheelchair around the courtroom.
I could detail what we should include in a code of practice, but I do not think that that would be helpful at this moment. I also recognise that many courts are listed buildings and that my expectations and those of disabled people must be tempered by that fact and the issue of reasonable costs.
During the passage of the Police and Magistrates' Courts Bill through this House my noble and learned friend, after I had spoken in Committee, gave me an amendment to bring forward at Report stage which provided that magistrates' courts committees had to have regard to the needs of disabled court users. In addition, in other Bills that have gone through this House the Government have responded favourably towards similar amendments. An amendment to the Railways Bill resulted in the Department of Transport's mobility unit drawing up a useful code of practice for future rail franchisees relating to people with disabilities. In the Education Bill 1993 a code of practice was drawn up to show what was expected of all schools in order to meet special educational needs. Therefore, the Government are not averse to codes of practice. I urge them to consider that approach in this case.
Before I finish, I should mention that it is the convention of this House that at Report stage I should not speak again. Therefore, I cannot speak after my noble and learned friend replies to the debate. However, 1428 I should point out that if I do not like what he says I may well return to the matter at a later stage. However, I hope that I shall like what he says.
§ Lord Renton
My Lords, there are two matters arising on Clause 43 which I feel obliged to mention. The first is that, in exercising his discretion under subsection (2), in my opinion the judge should give the benefit of the doubt to a disabled person who does not wish to serve.
My second point is that I do not believe that blind people should serve on juries anyway. I say that for two reasons. First, increasingly in cases today documents have to be considered. Those are not merely typewritten documents but documents in ordinary calligraphy. Sometimes even policemen's notebooks have to be considered. Secondly, it is essential that juries should be able to observe the behaviour of witnesses who are giving evidence. A blind person cannot do that. Justice must be done.
That brings me to the amendment of the noble Lord, Lord Ashley of Stoke, Amendment No. 88A. I am glad that the noble Lord has pressed the case, but there is a limitation in that case also which we should not ignore. By all means let us give this opportunity to deaf people or those who are hard of hearing, but above all we must ensure that justice is done. If the deafness is so extreme that the deaf person could not take in all that is said, especially all that is said on behalf of the accused, then in my opinion that deaf person should not be required to serve.
That brings me to Amendment No. 89, because the three points that I have mentioned could very well be contained in a code of practice.
§ Lord Archer of Sandwell
My Lords, before the noble Lord sits down, I wonder whether he agrees that a great deal of what has been said by himself, by my noble friend and by the noble Lord opposite could be met if the noble and learned Lord the Lord Advocate could direct the attention of the Judicial Studies Board to these problems. There have been items in judicial seminars relating, for example, to the problems of racial minorities. A great deal could be done if this issue were addressed in judicial seminars of that kind.
§ Lord Renton
My Lords, I do not think that that is an answer to the problem. The Judicial Studies Board issues reports which are not binding on anyone and which are not in general circulation.
§ Lord Ashley of Stoke
My Lords, I wonder whether the noble Lord is aware that there is a blind judge. He does a marvellous job. Would the noble Lord be in favour of dismissing that judge as being unable to assess what is taking place in a court of law? Is the noble Lord not aware that crooks adopt a countenance which is designed to mislead the jury? A blind jurist would not be misled by a countenance which is designed to mislead and would have an advantage rather than a disadvantage in a court of law.
§ Lord Wigoder
My Lords, these amendments are of importance not only to disabled people but also to the administration of justice. For that reason, in general we support them.
I hope that I shall be forgiven if on a less serious note I say that I support the amendments with just a tinge of sadness. On many occasions friends have come to me and asked how they can avoid jury service because it is particularly inconvenient. I shall no longer be able to give them the advice I have always given. That is that all they need to do is to go along to court and when their name is called to go into the jury box they make no answer on the first two occasions and on the third they cup one hand to an ear and say, "Was that me?" They are at once discharged from all further attendance.
§ Lord Rodger of Ealsferry
My Lords, I am grateful for the kind words about the amendments from noble Lords on all sides of the House. The Government's task in accepting the amendments was made all the lighter by the very good-natured spirit in which the original amendments were moved and the sincerity with which the case was put forward.
A number of points have been made in connection with Amendment No. 43. It is true to say that it will be the judges who will have to take decisions under subsection (2) of the new section. Their attitude will be important. If I may say so, the point made by the noble and learned Lord, Lord Archer of Sandwell, is well taken on this matter in connection with the Judicial Studies Board. I shall take the liberty of drawing that point to the attention of my noble and learned friend the Lord Chancellor. Such a procedure may be one way of getting knowledge of this section and its importance into the system.
For the remainder, the duty is clear on the statute. I hope that statutes are a clearer method of transmitting a message even than Middle Temple dinners. When it is seen in statute that the presumption is to be in favour, I hope that that will do the trick. The issues involved where such service was refused could well be sensitive. I am not sure that giving reasons would be the best way of handling the matter.
With regard to the points raised by my noble friend Lord Renton, when moving the amendment I stressed that the existing arrangements are not in any way affected. A person with a disability may apply for and be granted excusal by the summonsing officer. Those who felt that they could and wanted to serve would have that right in force. It was not to put a burden on those who might otherwise feel that they could not serve.
With regard to the ability of a blind person to serve, as my noble friend says, in some cases such service may be wholly inappropriate. But it is for the judge in the individual case to decide whether a person with a specific disability is or is not capable of serving on the
The noble Lord, Lord Ashley of Stoke, made a number of points when speaking to Amendment No. 88A. If I may, I shall reply to a number of them in correspondence. However, in broad terms, as the noble Lord may know, my noble and learned friend the Lord Chancellor has agreed to meet members of Deaf Accord 1430 on 18th July to discuss provisions for the deaf in court. That will give an opportunity for the noble Lord, Lord Ashley, and others to bring to my noble and learned friend's attention the kinds of cases about which he has spoken. On the whole, the Lord Chancellor's Department has not been made aware of a great number of problems in, for example, obtaining sign language interpreters.
Inquiries have been made recently. It has been found, for example, that in magistrates' courts it has been the practice of the defence to obtain quite satisfactory services by using the sign language interpreters who have been provided for the prosecution. In broad terms, in many cases that is the key in criminal trials. If a witness is a prosecution witness, it will be the prosecution which in effect will have to bring to court the sign language interpreter, whoever he or she may be. Where that is not the case—as noble Lords will appreciate, in the vast majority of criminal cases the defendant will have the benefit of legal aid—-the provision of the appropriate interpreter is a charge on legal aid.
The noble Lord, Lord Ashley, referred to civil proceedings. I appreciate that there the position is different. Interpreters are a matter really for the parties. Where a party is legally aided, again the position is dealt with by legal aid. However, I recognise that where parties are not legally aided, if an interpreter is required it is a matter for the parties themselves. That may be a point which the noble Lord, Lord Ashley, and others will wish to discuss with my noble and learned friend at such a meeting.
Having explained to your Lordships the; position with regard to interpreters, I shall not repeat some of the points I made in reply to the noble Lord in Committee.
My noble friend Lord Swinfen moved an amendment in connection with a code of practice. The Government do not believe that a code of practice is in fact necessary. That is not because the point which the noble Lord raised is not important. It is already well understood that the matters to which the noble Lord draws attention should be taken into consideration. As my noble friend said, the higher courts are a matter for my noble and learned friend the Lord Chancellor. Already he requires that all new courthouses should comply with building regulations which set out standards of facilities for people with disabilities. It follows that the design of those buildings should, therefore, enable people with disabilities to have easy access into and around the building. Therefore I am quite happy to undertake that the Lord Chancellor will apply that approach to new buildings in the future.
My noble friend also drew attention to the position of existing buildings. I readily accept that not all of them at present have the facilities that he wishes. But those buildings will from time to time have to be refurbished. Subject to the constraints imposed by the design of the older buildings, the requirements of listing and the costs involved, again I am happy to undertake that when facilities are being upgraded care will be taken that appropriate facilities are provided for disabled court users. Indeed, that is already the position. Schemes currently undertaken for the refurbishing of existing 1431 court buildings are already subject to that requirement. Efforts are being made for appropriate improvements for the disabled in the access to and facilities in those buildings.
I am happy to have given those two undertakings. I hope that in the light of them my noble friend will feel able to withdraw his amendment. I hope that I have not become lost in a procedural morass. I believe that the correct procedure is for me to commend Amendment No. 43.
§ On Question, amendment agreed to.
§ 6.45 p.m.
§ Lord Rodger of Earlsferry moved Amendment No. 44:
After Clause 38, insert the following new clause:
§ Jury service: excusal on religious grounds
§ "Members of certain religious bodies
A practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service." ").
§ On Question, amendment agreed to.
§ Schedule 4 [Transfer for Trial]:
§ Lord Rodger of Earlsferry moved Amendments Nos. 45 to 48:
Page 133, line 7, leave out from ("decides") to ("to") in line 8.
Page 133, line 8, after ("discontinue") insert ("or withdraw").
Page 133, line 9, at end insert:
Page 133, line 48, at end insert ("unless the person to be served cannot be found").
§ The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 45 to 48. These are largely technical amendments concerning the transfer pro-cedures. The main purpose of the amendments is to cover circumstances other than those already specified in the Bill where the prosecution may decide not to proceed, or indeed may not be able to proceed, with the transfer of a case. Those are circumstances in which the prosecution withdraws, as opposed to discontinues, the proceedings and where the Commissioners of Customs and Excise may stay or compound proceedings.
§ Amendment No. 48 removes the requirement to serve a copy of the notice of the prosecution case on an accused person where he cannot be found. I believe that noble Lords will agree that that makes sense.
§ On Question, amendments agreed to.
§ Lord Rodger of Earlsferry moved Amendments Nos. 49 to 51:
Page 134, leave out lines 25 and 26.
Page 134, line 38, leave out from ("accused") to end of line and insert ("makes the representations permitted under").
Page 135, line 7, leave out ("(5) or").
§ The noble and learned Lord said: My Lords, again these amendments are connected with the transfer procedure. The effect of Amendment No. 49 is to remove the requirement on an unrepresented defendant to give an indication to the court in his application for 1432 dismissal of his intention, if any, to make oral representations. We have concluded that this is an unduly onerous burden to place on someone who is not represented and who may therefore not fully understand the procedure. It therefore follows that the unrepresent-ed defendant will always be permitted to make oral representations should he so wish. Of course in practice an unrepresented defendant will need to be notified by the court of the date on which his application is to be considered and thereby be given an opportunity to appear. That matter will be dealt with in rules or in guidance.
§ Amendment No. 50 is a drafting change and gives the effect that the prosecution will be permitted to make oral representations to the court only if the accused actually makes such oral representations.
§ Amendment No. 51 is consequential on Amendment No. 49. I beg to move.
§ On Question, amendments agreed to.
§ Lord Rodger of Earlsferry moved Amendment No. 52:
Page 135, line 50, leave out from beginning to ("for") and insert ("Where an accused has been remanded in custody, on transferring proceedings against him").
§ The noble and learned Lord said: My Lords, in speaking to this amendment I should also like to speak to Amendments Nos. 53 and 54, as well as to Amendment No. 73.
§ Amendment No. 52 is just a paving amendment. Amendment No. 53 substitutes a new subsection and it relates to a person who is already remanded in custody when the court proceeds with the transfer of his case. On transferring the proceedings against the accused, the court can, under new Section 8(1) of the Magistrates' Courts Act 1980, either order that he be safely kept in custody until delivered in due course of law or that he be released on bail to appear before the Crown Court for trial.
§ As currently drafted, the new Section 8(4) would allow the court to exercise these powers in the absence of the accused only if the circumstances were similar to those in which Section 128(3A) of the 1980 Act would apply. That gives only a limited range. It applies only where the previous remands are for no more than eight days each. In practice the courts remand for up to 28 days during the later stages of the proceedings. Therefore subsection (4) has been substituted to reflect that practice. However, noble Lords will wish to notice that the other provisions in the section have been preserved and they provide safeguards. Noble Lords will also wish to notice that we have added a safeguard by providing that the consent to this procedure must be in writing. In other words, the accused must have given his written consent to being remanded in his absence; the consent must not have been withdrawn; and the accused must have attained the age of 17 when he gave that consent. If those conditions are not satisfied the defendant will indeed have to appear on transfer of proceedings against him.
§ Amendment No. 54 provides a procedure for dealing with an accused who is already remanded on bail prior to transfer. The effect of the amendment would be to provide that, where proceedings against that accused are 1433 transferred for trial, the requirement for him to appear before the magistrates' court at the end of the period of remand will cease unless the court states that it shall continue. That is similar to procedure that is already found in the Criminal Justice Acts 1987 and 1991.
§ Where the court states that the requirement is to continue, the accused will be under a duty to surrender to the court at the end of the period of remand. The court will then have the power to release him on bail again in accordance with the Bail Act 1976 to appear at the Crown Court for trial or order that he be kept in custody until delivered in due course of law. Where the release on bail is subject to recognisances, the court may fix the amount in which the surety is to be bound with a view to the surety's entering into that recognisance subsequently. Meanwhile the court is to remand the accused to custody.
§ Amendment No. 73 again relates to the matter of transfer and again applies to someone who has been remanded on bail. It provides for the court to adjust the terms of recognisance so that it applies to ensure that the accused appears before the Crown Court for trial. A procedure will be specified for ensuring that the surety is notified of the decision to transfer the case and that he gives his consent to continuing to stand surety. I beg to move.
§ On Question, amendment agreed to.
§ Lord Rodger of Earlsferry moved Amendments Nos. 53 and 54:
Page 136, leave out lines 23 to 29 and insert:
Page 136, line 29, at end insert:
("(4A) Where proceedings against an accused are transferred for trial after he has been remanded on bail to appear before a magistrates' court on an appointed day, the requirement that he shall so appear shall cease on the transfer of the proceedings unless the magistrates' court transferring the proceedings states that it is to continue.
(4B) Where that requirement ceases by virtue of subsection (4A) above, it shall be the duty of the accused to appear before the Crown Court at the place specified by the magistrates' court on transferring the proceedings against him for trial or at any place substituted for it by a direction under section 76 of the Supreme Court Act 1981.
(4C) If, in a case where the magistrates' court states that the requirement mentioned in subsection (4A) above is to continue, the accused appears or is brought before the magistrates' court, the court shall have the powers conferred on a magistrates' court by subsection (1) above and, where the court exercises those powers, subsections (2) and (3) above shall apply as if the powers were exercised under subsection (1) above.").
§ On Question, amendments agreed to.
§ Lord Rodger of Earlsferry moved Amendment No. 55:
Page 137, line 21, at end insert:
("( ) Where at any time during its consideration of an application for dismissal the court proceeds to try summarily the case of one or more of the accused under section 25(3) or (7) below, while dismissing the application for dismissal of the other accused or one or more of the other accused, it shall not be unlawful under this section to publish or include in a relevant programme as part of a report of the summary trial, after the court
determines to proceed as aforesaid, a report of so much of the application for dismissal containing any matter other than matter permitted by subsection (8) below as takes place before the determination.").
§ The noble and learned Lord said: My Lords, the effect of this amendment is to provide that, where a court decides to try summarily the case of one or more accused and dismisses the application for dismissal of the other accused, it is lawful to publish or report: details of the application for dismissal as part of a report of the summary trial. It applies of course only to the details of the application for dismissal by the person who then goes for summary trial. That again replicates the procedure which is provided in the old Section 8(3) of the Magistrates' Courts Act 1980. I beg to move.
§ On Question, amendment agreed to.
§ Lord Rodger of Earlsferry moved Amendment No. 56:
Page 138, line 38, at end insert:
§ The noble and learned Lord said: My Lords, in moving Amendment No. 56 I shall also speak to the other amendments in the group. These amendments are entirely consequential on the new procedure for transferring cases to the Crown Court for trial. Again, this is a tidying up operation. They replace references across the statute book to committal with references to the new transfer procedure. This, as I understand it, is the result of a computer search of the statute book which has revealed the need for particular amendments. I beg to move.
§ Lord McIntosh of Haringey
My Lords, I do not wish to detain the House, but I am fascinated by the reference to these amendments being required as the result of a computer search. Will the noble and learned Lord the Lord Advocate tell the House whether, if the computer search is applied to a lot more legislation, we shall gain in the sense that we shall have less legislation, or are we to lose in the sense that we shall have more? My impression from this list of amendments is that we shall have more.
§ Lord Renton
My Lords, before my noble friend replies, I must enter the debate now. In the presence of the Chief Whip I feel bound to point out that Amendments Nos. 45 to 84, and others grouped with the amendments that we are now considering, together occupy 11 pages of the Marshalled List and involve nearly 50 amendments. We are a revising Chamber and it is quite clear that much of the work that comes to us arrives in an undigested state from another place. This is an example. We are handicapped because under our procedure at Report stage we would not only be unable to do so but would be very unpopular if we tried to discuss these amendments in detail.
I hope that on future occasions we may either be given the opportunity of having many of these amendments, which could have been put into the Bill originally, included when the Bill is first presented to us or be given the opportunity, which is always given in 1435 another place when new matter is introduced at Report stage, of having the particular amendments for committal. In other words, we can discuss them as in Committee without being fettered by the procedure on Report. I do not put that suggestion forward for any frivolous or pedantic reason but because there is a tendency for this situation to happen increasingly. It is something which ought to be discouraged if possible in the years to come.
§ 7 p.m.
§ Lord Rodger of Earlsferry
My Lords, in reply to the noble Lord, Lord McIntosh, I can tell him that I asked this morning how these references were provided, and the answer was that a search had been made by computer. Once the statute book is on the database—we hope it will be later this year—it should make it easier to search and to obtain the references more quickly. I hope that, rather than having this data coming in—as your Lordships will appreciate that it tends to do—as the Bill proceeds, more of the references will be picked up and we shall be able to have them at an earlier stage. I hope that that will not increase the amount of legislation and certainly not lengthen the time that it will take.
To deal with my noble friend's point, I regret that these amendments have had to be brought forward, but they concern technical matters, except in so far as the amendments respond to amendments tabled by other noble Lords. They do not introduce new policy. They are technical matters, partly thrown up by the consideration that the Bill undergoes during Committee stage and so on. It is certainly better that such technical points are dealt with now rather than omitted and not included, therefore handicapping those who eventually have to use the legislation. I beg to move.
§ On Question, amendment agreed to.
§ Lord Rodger of Earlsferry moved Amendments Nos. 57 to 72:
Page 138, line 41, at end insert:
Page 138, line 45, at end insert:
Page 138, line 45, at end insert:
Page 138, line 46, at end insert:
Page 138, line 49, at end insert:
Page 139, line 5, leave out ("and").
Page 139, line 6, at end insert:
Page 139, line 6, at end insert:
. In section 9 of the 1853 Act (bringing up a prisoner to give evidence), for the words "under commitment for trial" there shall be substituted the words "pending his trial in the Crown Court".
In section 4 of the 1878 Act (procedure under that Act), for the words "committal of there shall be substituted the words "transfer of proceedings against".
§ In section 6(3) of the 1883 Act (inquiry by Attorney-General, and apprehension of absconding witnesses), for the words "committing for trial of there shall be substituted the words "consideration of an application for dismissal under section 6 of the Magistrates' Courts Act 1980 made by such person for such crime or the transfer for trial of proceedings against".").
Page 139, line 14, at end insert:
(". In section 56(1) of the Children and Young Persons Act 1933 (powers of courts to remit young offenders to youth court)—
§ Page 140, line 4, at end insert:
.In section 47(5) of the 1952 Act (rules for the management of prisons, remand centres, etc.), for the words "committed in custody" there shall be substituted the words "ordered to be safely kept in custody on the transfer of proceedings against them".").
Page 141, line 4, at end insert:
.In section 1(3) of the Criminal Appeal Act 1968 (limitation of right of appeal in case of scheduled offence), for the word "committed" there shall be substituted the words "transferred proceedings against".").
Page 141, line 26, at end insert:
.In section 23(1) of the 1969 Act (remands and committals to local authority accommodation)—
.In section 21(2) of the 1973 Act (restriction on imposing sentences of imprisonment, etc., on persons not legally represented)—
.In section 32(1) (b) of the 1973 Act (enforcement, etc., of fines imposed and recognizances forfeited by Crown Court)—
Page 141, line 36, at end insert:
(".In section 5 of the 1976 Act (supplementary provisions about decisions on bail)—
. In section 6(6) (b) of the 1976 Act (absconding by person released on bail), for the words from "commits" to "another offence" there shall be substituted the words "transfers proceedings against that person for another offence to the Crown Court for trial".
. In section 9(3) (b) of the 1976 Act (agreeing to indemnify sureties in criminal proceedings), for the words from "commits" to "another offence" there shall be substituted the words "transfers proceedings against that person for another offence to the Crown Court for trial".").
Page 141, line 49, at end insert:
(".In section 4(6) (c) of the Sexual Offences (Amendment) Act 1976 (anonymity of complainants in rape etc. cases), for the words "commits him for trial on" there shall be substituted the words "transfers proceedings against him for trial for".").
Page 141, line 49, at end insert:
.In Schedule 1 to the 1978 Act—
§ The noble and learned Lord said: My Lords, I beg to move these amendments en bloc.
§ On Question, amendments agreed to.
§ Lord Rodger of Earlsferry moved Amendment No. 73:
Page 145, line 30, leave out from ("words") to ("; and") in line 31 and insert (""transfers for trial proceedings against a person who has been remanded on bail" ").
§ The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ Lord Rodger of Earlsferry moved Amendments Nos. 74 to 84:
Page 145, line 35, at end insert:
(".In section 145(1) (f) of the 1980 Act (rules: supplementary provisions), for the word "committed" there shall be substituted the words "in respect of whom proceedings have been transferred".").
Page 145, line 45, at end insert:
Page 147, line 13, at end insert:
(". In section 80(2) of the 1981 Act (process to compel appearance before Crown Court), for the words from "the person" to "committed" there shall be substituted the words "proceedings against the person charged have not been transferred".").
Page 147, line 13, at end insert:
. In section 1(2) of the 1982 Act (restrictions on custodial sentences for persons under 21)—
. In section 3(2) of the 1982 Act (restriction on imposing custodial sentences on persons under 21 not legally represented)—
Page 147, leave out lines 15 to 26 and insert:
("(1) Section 52 of the 1983 Act (provisions relating to persons remanded by magistrates' courts) shall be amended as follows.
(2) In subsection (2), for the words from "accused" to "or" there shall be substituted the words "court, on transferring proceedings against the accused to the Crown Court for trial, orders him to be safely kept in custody, or commits the accused in custody to the Crown Court".
(3) In subsection (5), after the words "expired or that" there shall be inserted the words "proceedings against the accused are transferred to the Crown Court for trial or".
(4) In subsection (6), after the word "If there shall be inserted the words "proceedings against the accused are transferred to the Crown Court for trial or".
(5) In subsection (7)—
Page 147, line 30, at end insert:
. In section 62(10) (a) of the Police and Criminal Evidence Act 1984 (power of court to draw inferences from failure of accused to consent to provide intimate sample), for sub-paragraph (i) there shall be substituted the following sub-paragraph—
(i) whether to grant an application for dismissal made by that person under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial); or".").
Page 147, line 39, at end insert:
(". In section 21(6) of the 1985 Act (interpretation, etc.), in paragraph (b), for the words from "the accused" to "but" there shall be substituted the words "proceedings against the accused are transferred to the Crown Court for trial but the accused is".'").
Page 148, line 27, at end insert:
("(4) In section 6(5) (applications for dismissal), for the words from "a refusal" to the end there shall be substituted the words "the dismissal of a charge or charges against an accused under section 6 of the Magistrates' Courts Act 1980.".").
Page 149, line 50, at end insert:
(". In section 17 of the Coroners Act 1988 (supplementary provisions applying on adjournment of inquest)—
Page 150, line 27, at end insert:
("( ) In paragraph 5 of Schedule 6 (applications for dismissal), in sub-paragraph (7), for the words from "a refusal" to the end there shall be substituted the words "the dismissal of a charge or charges against an accused under section 6 of the Magistrates' Courts Act 1980.".").
Page 150, line 30, at end insert:
. In section 6(3) (c) of the 1992 Act, for the words "commits him" there shall be substituted the words "transfers proceedings against him".").
§ The noble and learned Lord said: My Isolds, I have already spoken to these amendments. I beg to move.1439
§ On Question, amendments agreed to.
§ Clause 42 [Criminal Damage, etc. as summary offence—relevant sum]:
§ Lord Monson moved Amendment No. 85:
Page 27, line 20, leave out ("£5,000") and insert ("£4,000").
§ The noble Lord said: My Lords, the purpose of this amendment is to provide a little more justice for victims of serious criminal damage than the Government seem willing to provide and, with luck, to help prevent such damage being caused in the first place.
§ The Magistrates' Courts Act became law on 1st August 1980. In that Act the relevant sum—which equates to the cost of the damage caused—below which the case would be triable only summarily was fixed at £200. To most people that seemed to strike a very reasonable balance. Between August 1980 and May 1994 (the most recent month for which the RPI figure is available) the RPI rose 112.58 per cent. by my calculation. To keep the figure constant in real terms, the present watershed (if I may so describe the sum in question) should be £425. However, the Government have already, since 1980, raised the real watershed value by a factor of 4.7 to £2,000. Now, to add insult to injury, it is proposed to raise it by a factor of 11.6 per cent. —in real terms, to £5,000. The amount of £5,000 is not a trivial sum where criminal damage is concerned. The owner of a car smashed into by joyriders and written off may have been able to insure the car for third party, fire and theft only. Similarly, a householder may not have been able to insure his or her furniture or garden equipment against similar destruction.
§ Your Lordships may consider my suggestion of a 20 per cent. reduction of the sum proposed by the Government rather feeble—mere tokenism, as it were. Ideally, I should like to have inserted a much lower figure. However, I concluded that figure of £4,000 was a compromise that the House and possibly even the Government would be more likely to accept. I beg to move.
§ Lord Rodger of Earlsferry
My Lords, the reason for the change from £2,000 to £5,000 is to put right an omission made in 1991. As the noble Lord said, the original sum was £200. It was raised eventually to £2,000 by the Criminal Justice Act 1988. At that stage it was in line with a number of other financial thresholds. Those financial thresholds were raised by a factor of 2.5 in the Criminal Justice Act 1991. It was the intention to raise all the thresholds by that factor at that time. However, by inadvertence that particular threshold was missed out. What has been done is simply to put right what should have been done three years ago in the Criminal Justice Act 1991. It is a matter of catching up.
Nobody denies that damage in the order of such figures can be a serious matter. But this amendment simply raises the threshold, still leaving the magistrates with die discretion to decide on the appropriate venue for more serious offences involving criminal damage between £5,000 and £10,000.
In that connection I observe to the noble Lord that the Lord Chief Justice gives guidance on mode of trial. His 1440 guidance suggests that summary trial is appropriate where the value of the property destroyed or damaged is less than £10,000. That is the Lord Chief Justice's guidance on the matter. Noble Lords can see that we have raised the figure only to £5,000 despite that guidance. Therefore we feel that we are catching up on a technical oversight. We are also well within the policy range indicated by the Lord Chief Justice. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Monson
My Lords, I am most grateful to the noble and learned Lord for his explanation. I do not believe that I can make much headway against both the Government and the Lord Chief Justice. The fault seems to lie basically with the 1991 Act, which received a certain amount of criticism at the time: I do not believe that it would be inappropriate to repeat it briefly.
There is no doubt that the higher threshold saves money, but it does so at the expense of justice to those who have been wronged and who perhaps have lost the equivalent of six months' earnings. In many cases they have no chance of recovering the money. Moreover, the lower maximum penalty may tempt more young people to indulge in this kind of destructive behaviour.
It is odd that, on the one hand, the Government constantly impose higher maximum penalties because they say that they are needed for deterrent purposes, but, on the other hand, in this particular instance effectively they lower the maximum penalty, even though the crime in question is by no means in decline; on the contrary, it is increasing. However, for the moment I believe that I have said all that can be said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Annaly
My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage does not begin again until ten minutes past eight.
§ Moved accordingly, and, on Question, Motion agreed to.