§ 3.5 p.m.
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
§ Lord Campbell of Alloway moved Amendment No.25:
Before Clause 32, insert the following new clause: ("Safeguards applicable to sections 32 to 34.—
§ The noble Lord said: The object of the amendment is to afford safeguards when the right to remain silent is exercised under the proposed regime.
§ We are concerned with matters of principle arising on amendments to Clauses 32 to 35 on the Marshalled List, not only as to whether Clauses 32 and 33 stand part of the Bill but also as to the nature of the safeguards proposed as applicable to Clauses 32 to 35.
§ The noble and learned Lord, Lord Lowry, supported Clauses 32 to 35 in principle and was of the opinion that we have to search for the right formula. He was also of the opinion that these proposed innovations could positively help innocent offenders, for reasons which he gave at some length (col. 397 of the Official Report) at Second Reading. Such is the spirit in which I move the amendment.
§ In speaking to Amendment No. 25 perhaps I may describe the position in this way. There are six horses, under four different owners, in the field under starter's orders. Only on Amendment No. 26 in the name of the noble Viscount, Lord Runciman, would it be possible to place an even money bet. The first horse is mine— "Amendment No. 25, Safeguards to Clauses 32 to 34", which is sired by Compromise out of Hope. The second horse is "Clause do not stand part". The third horse is "Amendment No. 26, Pre-trial statements" in lieu of "Clause 32 Stand Part". The fourth is "Clause 33 do not stand part". Those three are sired by Justice out of Royal Commission. Horse No. 5, "Alternative safeguards to Clauses 32, 34 and 35", is owned and ridden by the noble and learned Lord, Lord Ackner, who tells me that today he has the support of Justice. The sixth horse is the government horse, which is always handled with care and consummate skill by my noble friend Lord Ferrers under Jockey Club rules without abuse of the whip.
The position is complex, and I hope that I have cleared the yard-arm in a vaguely intelligible fashion. Amendment No. 25, which I move, can only be accepted if Clauses 32 to 34 stand part of the Bill. Therefore, consideration must be given to the intention to oppose the Motion that Clauses 32 and 33 stand part of the Bill and also to Amendment 26, which is tabled in lieu of Clause 32. Attention must also be paid to the alternative safeguard proposals to Amendment No. 25 tabled by the noble and learned Lord, Lord Ackner, in Amendment No. 25A relating to Clause 32, Amendment No. 27A relating to Clause 34 and Amendment No. 29A relating to Clause 35. In moving Amendment No. 25, Amendments Nos. 27, 29 and 30, tabled by my noble friend Lord Ferrers, do not require consideration at this stage. I should like to thank my noble friend for having
kept an open door to representations with officials from his department on Amendment No. 25, and for having taken back Amendments Nos. 22 and 24. Amendment No. 25, which I move, is a compromise. It stands somewhere between—I hesitate to say half-way— whether Clauses 32 and 33 do or do not stand part. The objective in moving the amendment is not, as at present advised, to divide the Committee but to contribute to the need to make,
a fresh, clear start, agreed after mature debate",
to which the noble and learned Lord, Lord Lowry, referred in his remarkable and authoritative maiden speech, at col. 398 of the Official Report.
§ As to the matters of principle, Amendment No. 25 is concerned with safeguards for Clauses 32 to 34, but not for Clause 35. Perhaps the Committee will consider Clause 35, regarding the effect of an accused's failure or refusal to account for presence. Taken by and large after an arrest for an offence, there really is no injustice in drawing an adverse common sense inference from such refusal or failure to account for one's presence. The alibi procedure removes surprise at the trial. For those reasons, I cannot in principle accept or support Amendment No. 29A in the name of the noble and learned Lord, Lord Ackner.
§ As to Clause 32, I could only support the Motion that Clause 32 stand part, subject to the safeguards proposed by Amendment No. 25, or some other safeguards, but not in principle the safeguards proposed by Amendment No. 25A in the name of the noble and learned Lord, Lord Ackner, for reasons which I shall give in a moment.
§ Irrespective of whether Clause 32 stands part, in principle I wish to support Amendment No. 26 in the name of the noble Viscount, Lord Runciman, as to prosecution and defence statements on trial on indictment, but not in lieu of Clause 32.
§ As to Clause 33, I could only in principle support the Motion that Clause 33 stand part subject to the safeguards proposed by Amendment No. 25, as referred to on Second Reading, or some other safeguards to meet the concerns expressed by the noble and learned Lord, Lord Lowry, which as yet have not been tabled.
§ As to Clause 34, I could only support the Motion that Clause 34 stand part subject to safeguards as proposed by Amendment No. 25, or some other safeguards, but not in principle those proposed by the noble and learned Lord, Lord Ackner, in Amendment No. 29A. Although the noble and learned Lord, Lord Ackner, and I agree in principle that Clauses 32 to 35 should stand part so that an adverse common sense inference may be drawn either in the determination of guilt or as to whether there is a case to answer from the exercise of the right of silence (subject to safeguards), the reasons in principle why I cannot accept the noble and learned Lord's proposals in Amendments Nos. 25A, 27A and 29A are as follows.
§ First, putting it briefly, the accused is not informed of the consequences of the exercise of his right to remain silent, as he is under my amendment. Secondly, the presence of a lawyer, under the noble and learned Lord's amendment, would appear to exclude what is said on the doorstep, in the street or in the police car, which is not 485 excluded by my amendment. Therefore I respectfully suggest that the noble and learned Lord's amendment is not only unduly restrictive but impracticable.
§ So also is, as the noble and learned Lord suggests, a taped recording away from the police station in any of the circumstances envisaged by Clauses 32, 34 and 35. This would present, I am advised, enormous practical difficulties. In this context, I refer to paragraphs 11 to 15 of the Royal Commission report, and to the Essex experiment, the result of which is not yet known.
§ As to the Motion that Clauses 32 and 33 do not stand part, it is accepted that the Royal Commission was nine to two against any changes in the right of silence. It is accepted that that view was supported by Justice. It is accepted that many members of both branches of my profession hold that view. The substance of the argument was deployed at Second Reading. It is an argument which I in principle cannot accept.
As to the safeguards proposed by Amendment No. 25, is it not idle to pretend that Clauses 32 to 34 may not affect the presumption of innocence and the burden of proof, as under the existing regime no adverse inference may be drawn from the right to remain silent? The noble and learned Lord, Lord Lowry, said at Second Reading,
The judge can tell the jury about the accused person's non disclosure or failure to testify [but what he may say] has become so confused that even an experienced judge cannot be sure of what to say".—[Official Report, 25/4/94; col. 398.]
As regards Clause 33 in particular, the noble and learned Lord said that the judge must tailor his directions to specific facts. He stated at col. 397 of the Official Report,
I am not yet quite sure what would be the best wording for the clause",
and that the method, and the judge's approach on failure to testify, must be watched carefully.
§ Secondly, is it not idle to pretend also that questioning on the doorstep, in the street, in the police car, and so forth, is a kind of mirror image of the taking of a confession at the police station, as has been suggested, or that such questioning may not indeed be used to obtain a confession at the police station?
§ Thirdly, as proposed by my amendment, is it not essential that some contemporaneous record should be made and offered for comment and approval? Fourthly, is it not right and proper that those questioned should be informed of the consequences of exercising their right to remain silent because the whole regime has changed?
§ As regards Clause 32, in particular, must not the substance of the offence in fairness be explained with full particularity—or at least with sufficient particularity? Is it not essential that any dispute between those questioned and the constable must be resolved by a reasoned decision in which the benefit of doubt is resolved in favour of the accused, a decision subject to review of the revising court? Before an adverse inference is drawn either by the magistrates or by the judge on the submission of no case to answer, a reasoned decision must be given. On trial by jury, if the judge rules that an adverse inference may be drawn, surely he must tailor his direction and leave it to the jury as to whether or not to draw any such inference in reaching their verdict. I apologise for the length of my opening speech. I beg to move.486
§ Lord Hailsham of Saint Marylebone
It may be helpful if I put forward to the Committee a few general observations which I hope will be brief. The Committee has every reason to be grateful to my noble friend Lord Campbell for having numbered the horses in this Derby on the right of silence. It seems a fairly complicated race, and in what I shall say I am not putting my money exclusively on any one horse.
English law, from its early days, has paid undue attention to the question of admissibility of evidence and the competence of witnesses and too little attention to the weight of evidence and its reliability. Those questions are best not dealt with by technicalities but by common sense and a careful analysis of facts.
I illustrate that with one or two simple examples. From early days until 1898, it was in general true that an accused person could not give evidence on his own behalf, however innocent he was and however little the true facts may have been disclosed to the tribunal of fact. That rule applied in general to civil cases as well as criminal cases.
I do not know how many Members of the Committee have been surprised to read in the Pickwick Papers that in the breach of promise action between Mrs. Bardell and Mr. Pickwick, when the sole question at issue was whether or not a promise had been made, neither Mrs. Bardell nor Mr. Pickwick was allowed to give evidence. Sergeant Buzfuz was given the opportunity of talking his magnificent nonsense about "Gracious heavens!" and "Chops and Tomata sauce". The reason was that neither Mrs. Bardell nor Mr. Pickwick was a competent witness on the only point about which anybody knew anything.
That has led to a number of absurdities. Perhaps I should have said at the beginning that most prosecutions before a certain date, before the invention of police forces, were private prosecutions. Therefore, an elaborate set of rules had to be made about the admissibility of admissions or confessions which were obtained largely by persons in a position of authority who did not know how to behave properly.
We really ought to have outgrown those difficulties to a large extent in our legal development, but we have not wholly outgrown them. In 1898 when, for the first time, there was a general right on the part of the defence for the defendant to give evidence on his own behalf in a criminal trial, it was rightly thought that that might put him in an awkward position since he ought to know about his liability to be cross-examined and also about the effect of his not saying anything, which was his right.
I believe that we ought to retain, without alteration, the presumption of innocence—that is to say, the standard and burden of proof in criminal cases. Anything which can be shown to water that down needs a great deal of justification to make it acceptable, I hope, to Parliament. We also ought to preserve the right of silence which is absolute in the sense that a man who is under suspicion, at whatever stage of the trial or investigation, ought to be entitled to remain silent and to await further events.
It must be true that the burden of proof stays where it is because nought plus nought equals nought. No other 487 way of doing the sum arrives at any reliable conclusion. If there is not sufficient evidence to prove the matter beyond reasonable doubt, as we used to say—a rather more complicated and less satisfactory formula is now used—if there is no such evidence, the case falls of its own inanition. But it remains true that at a particular stage of the proceedings, whether on the doorstep or when it comes to the prosecution closing its case at the trial, there comes a situation where it would be remarkable, if the accused made no statement at all and if the prosecution had made a convincing case, the jury should draw their own inferences. And they do. Let us have no doubt about it, in my experience—which now extends over a long time, although some of it is rather out of date—juries do draw an inference.
The Act of 1898 hedges the prosecution about, probably with some justification, on the comment they may make about the silence of the accused. The Act says nothing about the comment the judge may make nor about what the jury may say. Those are matters into which the Committee must probe. I do not say that the answers are absolutely obvious. The answers depend upon a correct analysis of facts which are infinitely variable and upon the application of a certain amount of common sense. For example, when a man is charged with an offence, if he remains silent but at the trial he wishes to say, "Well, as a matter of fact, I was in Peru at the time and I can call 25 witnesses to say so", it would be surprising that he had not said so before. That is a matter of legitimate comment.
Let us look at a simple case: that horrible offence which is still rather more common than one would like —incest within the family. The young daughter, accompanied by her mother and a policeman, says in detail with a good deal of plausibility what the father is alleged to have done. If he says absolutely nothing, that again is a matter of some surprise. He might at least say: "I am absolutely innocent". He can of course remain silent; but it may well be that a jury or a tribunal of fact will come to a view that the matter needs a certain amount of explanation. The effect of remaining silent at any stage of the proceedings means that the prosecution case, however it is formulated, remains unanswered and uncontradicted. It may be that it falls of its own inanition—and so it should, if it does not amount to a convincing case. It may be that it requires an answer in order that there should be the element of doubt that is required.
I believe that nothing should be done to water down the evidence, the burden and the standard of proof, and nothing should be done to militate against the absolute right of the accused to remain silent if so he chooses at any stage of the proceedings. But it ought to be made plain, if he does so, by a correct analysis of the facts and the application of the ordinary rules of logic and common sense, that he does so in the knowledge that if he remains silent such of the things which have been alleged against him are uncontradicted, and if he has any special defence, such as an alibi, or something of that kind—or even self-defence or provocation—he might perhaps have let people know in advance.
488 I rather agree with what some members of the legal profession think; namely, that there ought to be a clear statement of the issues before the trial starts. That will no doubt be canvassed at some stage. But in the meantime, I want to suggest that this is the true view. First, everything that is logically relevant should be admissible before the court, subject only to this: that admissions obtained oppressively—by which I mean either by inducement or threat—should be excluded as a matter of discipline but not as a matter of logic. Secondly, on matters of fact, once evidence that is relevant and is capable of being logically probative is rightly let in before the tribunal of fact—judge alone; jury, if there is a jury; magistrates, if there are magistrates; or a Northern Ireland judge, if there is a Northern Ireland judge—relevance affects admissibility subject to excluding oppressive conduct, but reliability and weight ought to be left to the tribunal of fact after a proper direction and analysis of the circumstances. I suggest that those are the principles upon which a properly formulated Act with all these horses in the race ought to be decided by this Committee.
§ 3.30 p.m.
§ Lord Wigoder
With the greatest possible deference to the noble and learned Lord, I cannot help wondering whether this debate is in danger of taking the wrong turning at a rather early stage in the proceedings. I say that for this reason. This afternoon there will clearly be a substantial debate on restrictions on the right of silence. I would have thought that that debate ought to come when we debate the issues in relation to whether Clauses 32, 33 and 34 shall stand part of the Bill. They are not grouped with the present amendment at all. At the moment the position is that Amendment No. 25 stands by itself. There then follow in the grouping three amendments in the name of the noble and learned Lord, Lord Ackner. There then follows the grouping which deals with the debate on clause stand part in relation to Clause 32 and the other clauses.
It seems to me that Amendment No. 25 by the noble Lord, Lord Campbell of Alloway—and I am grateful to him for tabling it in the form that he has—simply proposes a safeguard in the event that those clauses do come later to stand part of the Bill. Equally, the amendments of the noble and learned Lord, Lord Ackner, propose safeguards should those clauses stand part of the Bill. I would—
§ Lord Campbell of Alloway
I am obliged to the noble Lord for giving way. I shall not take up the Committee's time. I could not move, as I saw it. I had to break the groupings. I simply could not move Amendment No. 25 at this stage without referring to the problem as to whether the clauses stood. If I am wrong, I apologise to the Committee. I accept that I break the groupings, but it is for that reason. I could not do it differently.
§ Lord Wigoder
Of course I am not in any way criticising the noble Lord. But surely the logical position is that we should, for the moment, assume that the clauses will stand part of the Bill at a later stage in the afternoon. On that assumption, we should consider 489 whether the safeguard of the noble Lord, Lord Campbell of Alloway, is an appropriate one; or, alternatively, whether the amendments of the noble and learned Lord, Lord Ackner, offer suitable safeguards; or should we suggest possible amendments to them? I appreciate that, if at a later stage we decide that those clauses should not stand part of the Bill, then of course these provisions will fall automatically. And no doubt the amendments in the name of the noble Lord and the noble and learned Lord may well therefore in due course not be proceeded with to a vote before we have decided later in the day the substantive issue as to the restrictions on the right of silence.
I personally desire to say, not a considerable amount but a certain amount, on the restrictions on the right of silence. But I shall leave that, if I may, until a later stage when we come to Clause 32 stand part. All that I would want to say as to Amendment No. 25 in the name of the noble Lord, Lord Campbell, is that I believe that it is to some extent helpful because it provides some safeguards. It appears to me to provide some safeguards in eliminating the admissibility of conversations between a police officer and a man on the doorstep. I know that the noble Lord, Lord Campbell, said that he did not believe that it did, but I take the view that it does. I cannot see that a constable on the doorstep is going to tell the defendant that he is seeking to discover by whom an offence has been committed, the substantial particulars of the offence, the right to remain silent, the consequences of his failure to mention a fact, and so forth. Nor can I see that a constable on the doorstep is going to make a contemporaneous written record. For those reasons I believe that the effect of the amendment of the noble Lord, Lord Campbell—which I very much welcome—is that it will rule out of admissibility at the trial the situation in which a person who is very probably an extremely vulnerable human being is at his maximum vulnerability; that is, when he is being arrested, being taken from his home, from his car or the street, and being placed in the sometimes terrorising surroundings of a police station. To that extent, I welcome the noble Lord's amendment.
On the other hand, I venture to think that the further safeguard of a contemporaneous written record that the noble Lord proposes is not, as experience has shown, a very thorough safeguard—first, because there are cases where, as it is now well known, vulnerable people have been persuaded to add their signatures to statements that they have not made; and secondly, because there have indeed been many cases where the records that have been subsequently established of a defendant's statement are not made contemporaneously at all but are made some considerable time afterwards, when memory is liable to be fallible.
For those reasons, although I am grateful to the noble Lord, Lord Campbell of Alloway, for having a try at proposing safeguards, I myself can extend only an extremely lukewarm welcome to them. And indeed, when we come to debate the amendments of the noble and learned Lord, Lord Ackner, I would contend that they provide a very much more satisfactory safeguard for a defendant should we eventually take the view that Clauses 32, 33 and 34 shall stand part of the Bill. I 490 believe—although it is not for me in any sense to decide the matter—that it would make for a more lucid and formative discussion on these amendments if we could separate the debate now into a discussion on the amendment of the noble Lord, Lord Campbell, and another on the amendments of the noble and learned Lord, Lord Ackner, and until we have disposed of them leave the general debate on the right of silence. Then we can come to the third group of amendments and the debate on whether Clause 32 shall stand part of the Bill.
§ Lord Windlesham
Following what the noble Lord, Lord Wigoder, has said, would it not make for a better debate if we were to hear the noble and learned Lord, Lord Ackner, now? He has formulated alternative safeguards dealing with exactly the same point. Then those Members of the Committee who wish to speak on this matter, as I do, would be able to do so when we had heard the two alternative courses of action put forward. As I understand it, I heard my noble friend Lord Campbell of Alloway say that he did not intend to push his amendment to a Division to take the opinion of the House. If he were to withdraw that amendment now, since the amendments are not grouped together, we could then move on to Amendment No. 25A.
§ Lord Campbell of Alloway
I am not prepared to withdraw the amendment at this stage. I do not intend to divide the Committee on it. However the Committee disposes of this matter is for it to decide but I shall certainly not withdraw my amendment at this stage.
§ Lord Renton
In the valuable speeches that we have heard so far I feel that one factor has been overlooked. It is a factor which I have felt for many years the court should bear in mind in relation to the whole of the trial and more especially in those circumstances perhaps in which the accused, having been interviewed by the police, has not understood the caution or perhaps unwisely may have decided or been advised to give evidence. It concerns those cases in which the accused is not what we might call an ordinary person.
There are various types of cases to bear in mind. In the extreme case the court will have decided that the accused is not fit to plead because of complete mental incapacity. However, there are those who are only very slightly handicapped but handicapped enough not to understand fully what is going on. Then there are those who are very young and have little experience of life but have just become adults. There are those who, for one reason or another, lack educational ability. There are even those who have mental illness. Mental illness is not always permanent; in fact there is an assumption that it is generally curable. At times people can suffer from mental illness—a nervous breakdown, for example— which at first may not be apparent. Nevertheless, it may affect the conduct of the accused. Finally, there are those people who are deaf. That is another category. Deafness is a very serious handicap when it comes to being interviewed by the police or cross-examined in court.
My own view is that, whatever decisions we reach on Clauses 32 to 34, we should bear in mind the particular difficulties which relate to the categories that I 491 mentioned. I hope that I am not premature in raising this matter. However, the particular difficulties of such people should be kept in mind throughout our discussions on these clauses.
§ Lord Rawlinson of Ewell
I am sure that everybody else is perfectly clear about the whole matter but I confess that I am in a right muddle. As I made clear at Second Reading, I should like to see the present rules altered. I do not think that they properly serve the cause of justice today. Therefore, I believe that there should be amendments to the so-called right of silence. I do not want to see Clause 32 dismissed. I do not want it taken out of the Bill.
On the other hand, I am anxious, and indeed would like to hear, that an open mind will be kept on certain safeguards which certain noble Lords, and in particular the noble and learned Lord, Lord Ackner, propose as an amendment to Clause 32. I do not want to let the amendment of the noble and learned Lord, Lord Ackner, disappear, and I do not want to see Clause 32 struck out of the Bill. By making quite sure that that does not happen I hope that we can resolve the muddle, at least so far as I am concerned.
§ Lord Elton
There are two categories of people in the Chamber. There are those who understand all about the matter and those who are merely spectators and have to make up their minds on the statements of those who do understand. As one of the latter, I feel that it would be helpful if one thing could be made clear about the people to whom these rules are to be applied.
I note that Clause 33 alone has a definition of age and applies to,any person (other than a child)".A "child" is described in the Bill as somebody under 14. In other words, there will be one year's worth of the secure training order customers whom we were talking about a week ago included in this tranche. However, I hope that at some stage those who understand all about the matter will tell us whether the people to whom Clauses 32 and 34 apply include children and if not, at what age the cut-out operates. I am sure that we recognise that people of different ages require slightly different treatment. We should like to know about that.
§ 3.45 p.m.
§ Lord Simon of Glaisdale
The noble Lords, Lord Wigoder and Lord Windlesham, must be right. These two groups of amendments—those of the noble Lord, Lord Campbell, and those of my noble and learned friend Lord Ackner—presuppose that Clauses 32 to 34 will stand part of the Bill and provide safeguards. There is no reason why we should not discuss them now— provisionally, so to speak—provided that we keep that in mind.
The amendments of the noble Lord, Lord Campbell, are useful in drawing attention to the fact that there are successive stages in the investigation of a crime. In the first stage the police must make inquiries as to the scope of the crime, its nature and who might help in the investigation. At that stage the police inquiries are and must be open. The next stage is when someone is 492 suspected of the crime. At that stage a caution must be given to the person who is suspect. The third stage is where there is sufficient evidence to charge the crime. At that stage at present all questioning must be suspended.
The Royal Commission proposes that there should be some slight modification of that system, with which I respectfully agree. But those are the three stages: the open inquiries; the stage when somebody is suspect and therefore must be cautioned but, subject to the caution, may still be questioned; and the stage where he is charged, after which, as at present, no further questions may be asked of him.
§ Lord Peyton of Yeovil
Perhaps I may make a brief intervention. I make the most charitable assumption that grouping is an arrangement designed for the convenience of the Chamber. I have always understood and hoped so. But very often it has the absolutely reverse effect and such seems to be happening now.
The noble Lord, Lord Wigoder, made the point very clearly. He asked whether or not we are to have Clauses 32, 33 and 34 in the Bill. Until we have decided that question it seems to me—I say it with the greatest respect to those who disagree with me—that we are spending a lot of time unnecessarily and prematurely on deciding the safeguards that will be necessary in that event. I do not know whether my noble friend on the Front Bench feels that he can helpfully intervene and assist us now, steering us in a way that might allow us to discuss what seems to me to be the substance of what is before us this afternoon; namely, Clauses 32, 33 and 34 and whether or not we are to have them in the Bill.
§ Lord Campbell of Alloway
I agree with the suggestion made by my noble friend. I sought to point to that objectively when I moved Amendment No. 25 and said that I could not effectively do so until we knew where we stood.
§ Lord Carlisle of Bucklow
Surely the sensible course is to debate Clause 32 and Clause 33 stand part before debating either this amendment or the following group. I rise to ask the Committee whether or not we have the power to change the order in which the amendments are grouped.
§ Lord Renton
Our procedure is perfectly clear and so much better established than I dare to say. It is established that we consider amendments to a clause before we decide whether or not the clause shall stand part. There is nothing we can do about that.
My noble friend Lord Renton is correct in that we must consider the amendments to a clause before we decide whether or not the clause— amended or not—can stand part of the Bill. However much we may find it more convenient to do otherwise, we are not in a position to change the procedure. Of course, it may be more convenient to discuss the whole matter together in one debate—I fancy that it probably would be—but the way in which we have started means that it will probably be best for us to stick to the present 493 arrangements and hope for the best. The noble Lord, Lord Shepherd, shakes his head and that is always a discouraging sign.
§ Lord Shepherd
I shake my head to the suggestion that we should make the best of the situation. The noble Lord, Lord Renton, is right when he says that we cannot move amendments after clause stand part. On the other hand, procedure in this Chamber, as we have known it over many years, is highly adaptable. If the noble Lord, Lord Campbell of Alloway, had responded to the suggestion of his noble friend Lord Windlesham, that might have led us out of some of our difficulties. The noble Lord, Lord Campbell of Alloway, made some powerful points. However, due to procedural difficulties we find ourselves not in a position to discuss what is, in a sense, the most fundamental issue before the Committee today.
The noble Lord, Lord Campbell of Alloway, would not have lost his right by following the suggestion made. The matter could be brought back at Report stage. But, again stretching the procedure of this Chamber, if the matter were of such importance this Chamber could require another Committee to be formed; in other words, another Committee could form itself back at a later stage before Report to take a procedural course.
Like the noble Lord, Lord Elton, I am not a lawyer, and I am beginning to be slightly bemused. The noble Lord, Lord Campbell of Alloway, would give great service to this Chamber and the issues before us if he were to respond to the suggestion of his noble friend Lord Windlesham and withdraw the amendment. He has already declared that he has no intention of dividing the Committee on Amendment No. 25. That does not prevent other Members of the Committee calling for a Division if they so wish, but the noble Lord does not intend to do so at this time. We are therefore having a general discussion hoping, as the noble Earl, Lord Ferrers said, "for the best". If the noble Lord, Lord Campbell, accepts the suggestion of his noble friend Lord Windlesham I suspect that the Committee will be extremely grateful to him.
§ Lord Mottistone
Perhaps the most convenient arrangement would be for my noble friend the Minister to respond to the amendment of my noble friend Lord Campbell of Alloway—as briefly as possible—so that at least we are clear as to what the Government think about Amendment No. 25. We can then consider the next amendment.
My noble friend asks two contradictory questions. First, he asks whether it will be convenient for me to respond to my noble friend's amendment. I do not believe it is particularly convenient. He also asks me to respond briefly, and that will not be easy either. However, I shall do my best.
The right of silence is a matter of enormous sensitivity. Members of the Committee and many others hold strong views about it. My noble friend Lord Elton said that we fall into two categories—those who know all about it and those who are spectators. I have a funny idea into which category I fall because I am not a lawyer. When one is a Minister with the privilege of 494 replying on behalf of the Government to a whole lot of lawyers—if I can put it in that all-embracing way—it is a difficult position to be in.
The proposition behind the amendment is perfectly simple; that is, whether certain evidence be available to the jury and, if it is, whether it will be unfair to the defendant. That is the basic principle we must decide. My noble friend Lord Campbell of Alloway is concerned about safeguards. The principal questions raised by his new clause are whether inferences should be able to be drawn from a person's failure to mention a relevant fact if, but only if, he has been cautioned and "substantial particulars" of the offence have been disclosed to him by the police officer questioning him, and whether the exchange must be the subject of a contemporaneous written record which has been offered by the police officer to the suspect for signature at the time.
There is no doubt that allowing inferences to be drawn from a person's silence under police questioning or at his trial is an important change, and such a change must be accompanied by proper safeguards. The Bill, together with existing legislation, incorporates a number of effective safeguards. The main issue which is involved both in the amendment of my noble friend Lord Campbell of Alloway and that to be moved later by the noble and learned Lord, Lord Ackner, is whether or not we should introduce additional safeguards to those already embodied in the law and those proposed in the Bill. We should bear in mind that the effect of the amendments may, in practice, restrict the circumstances in which inferences—in our view, common sense and realistic inferences—can be drawn.
We may all hold strong and differing views on principles. But nobody has a monopoly of wisdom on the mechanics of how one puts a principle into practice. The Government will certainly listen with interest to all that your Lordships have said, and will say this afternoon, in relation to safeguards. We shall certainly reflect carefully on the points made. On the same basis, I hope that the Committee will consider why the Bill has been drafted in the way that it has because, in view of what your Lordships say, now is not a convenient time for me to go into the reasons.
The new clause proposed in Amendment No. 25 suggests that before any inference can be drawn the suspect must have been given particulars of the offence and been cautioned. The difficulty is that the police do not caution people when they first walk through the door or when they are trying to ascertain what is going on. They do not give everyone they meet particulars of specific offences that they happen to be investigating. Code C of the Police and Criminal Evidence Act rules do not require that and it is not real life.
. Amendment No. 25 would mean that no inference could be drawn from the fact that the first words that a suspect addressed to a police officer were, "mind your own business", or something along those lines. A jury could take into account a confession made under those circumstances; they could take into account what lawyers call an "inconsistent statement" made in those circumstances, but they could not take into account "mind your own business" or "no comment".
495 The Government's view, in schoolboy language, is that "that's not fair". It is not practicable to make a tape recording of every word which passes between a police officer and a person who is a suspect or who may become a suspect. Still less is it reasonable to do so to the standards rightly required before such a recording could be used in evidence. Police do not carry portable tape recorders with them wherever they go.
Tape recorders are remarkably prone to alteration. Whenever I use a tape recorder for writing my letters, so uncertain am I (unlike some Members of the Committee) of my ability to explain myself clearly that I frequently run the tape back, erase what I have said and substitute something else. One can just imagine the scope for altering what someone has said on a tape. They would be enormously unreliable pieces of evidence. That is why the most sophisticated arrangements have been made for tape recording in police stations—in order to prevent any chance of anyone monkeying around with the evidence. I suggest to your Lordships that if all that is needed for us to get over the problem which we are discussing is for police officers to use a portable tape recorder, then all the installations for tape recording in police stations would be a waste of time and money. But I doubt whether your Lordships would come to that conclusion.
The conclusion I come to is that, for those reasons, my noble friend's amendment is undesirable. But I understand his concern in trying to make sure that any evidence which is given to a court should be fair both to the prosecution and also of course to the defendant.
§ 4 p.m.
§ Lord McIntosh of Haringey
Very much for the reasons that the Minister has given, I hope that the noble Lord, Lord Campbell of Alloway, will not pursue this amendment to a Division. Indeed, it is my understanding that he will not. I say that not because I do not think he is moving in the right direction. I believe that he is correctly seeking to remove some of the dangers in Clause 32; in particular the danger that arises from the phrase,at any time before he was charged with the offence",which is far too wide. I suggest to the noble Lord that we would do better to deal with this matter not by seeking to distinguish between different kinds of interrogation before we come to trial as interrogation will always be different from evidence, different from examination at the trial. It may be necessary in due course to distinguish between different types of interrogation but we ought to try to avoid it now.
The important thing to do—and we could do it on the group of amendments led by the Question that Clause 32 stand part of the Bill—is to seek to establish under what circumstances (I come back to the words of the noble and learned Lord, Lord Hailsham) it may be necessary to ensure that the defendant does not spring a defence on the court. I suggest that it would be better to do that on the group of amendments headed by the Question that Clause 32 stand part of the Bill rather than on either the amendment of the noble Lord, Lord Campbell, or indeed the amendment of the noble and 496 learned Lord, Lord Ackner. For that reason I hope that the noble Lord will maintain his determination not to pursue this amendment.
§ Lord Campbell of Alloway
I shall defer to the view of the Committee, but surely we should now move to the Question whether Clause 32 and Clause 33 stand part of the Bill and postpone any question of the withdrawal of my amendment. If there is a Division on the Question whether Clauses 32 and 33 stand part, then my amendment falls in any event. I do not know whether the Committee will divide on the Question whether Clauses 32 and 33 stand part. If I am asked to withdraw my amendment—I do not want to go against the general wish of the Committee —surely the noble and learned Lord, Lord Ackner, ought to withdraw his amendment. Although it may be slightly contrary to the rules, in this situation ought we not to move to the Question whether Clauses 32 and 33 stand part? That is the main issue which governs any amendment.
§ Lord Hailsham of Saint Marylebone
Perhaps I may try to be helpful. Whether I succeed or not is for the Committee to decide. We are at the moment in the position that the amendment of my noble friend Lord Campbell is the only Question before the Committee. I am not trying to prejudge anything which my noble and learned friend Lord Ackner may wish to do with his amendment, but perhaps I may suggest that the only course of action is to follow the rules of the House. I suggest that we might act in something like this way. Each person with an amendment, based on the assumption that Clause 32 remains in the Bill, should speak briefly to his amendment and hear a brief reply from the Minister. He should then seek leave to withdraw his amendment and we should go to the Question whether the clause should stand part. Both my noble friend Lord Campbell and my noble and learned friend Lord Ackner will be free to move any amended version of their amendments on Report when the House knows what they are trying to do. We must face the fact that that is where we are—and it is where we are whether or not my noble and learned friend Lord Rawlinson thinks it a difficult situation.
§ Lord Campbell of Alloway
All right, I give in. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 32 [Effect of accused's failure to mention facts when questioned or charged]:
§ Lord Ackner moved Amendment No. 25A:
Page 21, line 39, at end insert:
("( ) Subsections (1) and (2) above do not apply unless—
§ The noble and learned Lord said: The noble Lord, Lord Campbell, never ceases to astonish me. He paid me one of his unusual compliments on Second Reading, his speech immediately following mine, by saying that he 497 totally agreed with it and was shortening his speech because of that agreement. He now seeks to muzzle my amendment because he made perhaps the tactical error of telling everyone in advance not to take it too seriously.
§ Perhaps I may now deal with my amendment. I start by saying that there is a far greater degree of harmony on this subject than is apparent. I indicated at Second Reading that there are two categories of silence. The first is the silence in court. The accused has had the advantage of the depositions being delivered to him and his advisers months before the trial. At trial he has heard his counsel testing the evidence of the prosecution. If he is then silent, as he is entitled to be, why on earth should not the prosecution and the judge say to the jury, "Members of the jury, you may think it is very remarkable that he has decided, as he is entitled to, in the circumstances of this case to remain silent."?
§ Perhaps I may give an example given by Professor Glanville Williams fairly recently. The defence has an alibi. The defendant calls, or causes to be called, several members of his family to establish that he was not at the scene of the crime at the relevant time but he opts not to give evidence himself. Why on earth, as a matter of common sense, should the prosecution and the judge be unable to say to the jury, "Members of the jury, you may think it is a very startling situation that the accused has decided to rely upon the evidence of his family as to where he was and not to give you the benefit of his own evidence. It does not prove he is guilty, but it is something that you are entitled to take into account and make what you wish of it."? That is the first category.
The harmony which I say exists here is quite clear. The noble Lord, Lord Alexander, said during the Second Reading debate:
I am content that there should be reasonable comment on the failure of an accused to testify at trial".—[Official Report, 25/4/94; col. 453.]
But to make the matter doubly sure, we have an amendment, Amendment No. 26, which does more than that. It advances the situation by saying that there is an obligation upon the accused, when he is provided with the depositions and an outline of the prosecution case, to provide the prosecution with the nature of his defence. I would have wished it to be "the nature and the substance", but that is another matter.
In subsection (4) the amendment continues:
In the event that the defendant—
§ The situation at trial, to use a lawyer's phrase, is an a fortiori situation which is even stronger because at trial he has had not only the advantage of the depositions but also he has heard the nature of the prosecution's case tested by his advisers. So the very nature of Amendment No. 26 recognises that silence at trial must be capable of proper comment. Just what the comment is depends on the nature of the case.
§ The second category on which we are now focusing is the situation of the defendant pre-trial, in the police station or elsewhere, being asked questions by the 498 police. My noble and learned friend Lord Hailsham says that if it is logically relevant then evidence should be admissible. I accept that as a general proposition, but it has many exceptions as all Members of the Committee will know. Except in very limited circumstances an accused's record—that is to say, his bad conduct over the past—cannot be put to him when he gives evidence. It is logically irrelevant that he has been convicted on nine previous occasions of rape in similar circumstances to that for which he now stands charged. But the reason why it is excluded is because it is thought that the prejudicial consequences of admitting that material would outweigh the evidential value on the simple basis that if you give a dog too bad a name inevitably you hang it.
The question is this: of course it is logically relevant that the accused, when asked questions at the police station, refuses to reply. But is it fair? That is the test which was propounded by Lord Reid when this matter was debated over 20 years ago. He said that this so-called right of silence—the right not to have your silence commented on—does not exist. What does exist is an obligation upon the courts to see that the accused is treated fairly and the test must always be,
Are you being fair to the accused?".
§ The noble Lord, Lord Renton, has given a number of examples of vulnerable personalities. But the ordinary, everyday person may find himself understandably overborne by the atmosphere of the police station. It may be that he is being subjected to hectoring or oppressive questioning, or perhaps he merely thinks that he is, but he is in a disadvantageous position because there is a situation of very substantial imbalance. Therefore, what we are concerning ourselves with is this: what are the proper safeguards that should be provided to right that imbalance in order to make sure, as far as one can, that the accused is being treated fairly?
§ At Second Reading I suggested—and my amendment merely sets it out—that unless he has the advice of a lawyer; unless he has the opportunity to consult a lawyer; unless he is told in a broad manner just why he is being brought to the police station; and unless he is told again in outline the sort of questions he is going to be asked, you are not providing him with the appropriate safeguards. If you provide those safeguards then the answer to Lord Reid's test of whether one is being fair to the accused is fully and properly answered. There will be those—and no doubt the Government—who will say "You are delaying the material that we want. You are adding to the expense by requiring a solicitor to be present".
§ I do not believe that delay is a proper answer for unfairness. As regards expense, if what I have said is the Government's view, then it is myopic for this reason. If the ability to comment on silence is permitted then there will be far fewer unnecessary contests in court. You will re-educate the legal profession (and it needs it) into approaching the criminal administration of justice on the basis that the police have a positive duty to investigate and that the public have a positive duty to co-operate with the investigation; that it is in the client's interest to bring out his defence at the earliest possible stage in the hope that that will satisfy the police. They 499 need no longer waste further time on him and it may be they will obtain from him evidence which will lead them on the right track. That is what the measure is designed to do. I do not in any way seek to justify this view on more guilty men being convicted; I justify it on the basis that it is a sound, sensible and intelligible way of developing one aspect of the administration of justice. But if we are going to make these major changes, proper safeguards are required. That is what my amendment seeks to do. I beg to move.
§ 4.15 p.m.
§ Lord Windlesham
This amendment is worth very serious consideration. It can be taken quite separately from the general issue as to whether the Committee supports the Government's proposals contained in Clauses 32 and 33, which would have the effect of curtailing the right of silence. The amendment of the noble and learned Lord, Lord Ackner, has the almost unique quality of bringing together those who are opposed to a change, and who would like to see the preservation of the status quo, and those who agree with the Government that a change is needed, including the noble and learned Lords, Lord Ackner, and Lord Rawlinson, the noble Lord, Lord Campbell of Alloway, and other Members of the Committee.
So what is in this amendment which appeals to those whose views are otherwise in conflict with one another? It is a question of whether—it can be argued whether it is the purpose—the Government's proposals would be strengthened by the addition of statutory safeguards. Those safeguards are very clearly spelt out in the amendment standing in the name of the noble and learned Lord, Lord Ackner. They should have a double effect. They should help to ensure the fairness of which he spoke and of which the noble and learned Lord, Lord Hailsham, spoke earlier, and fairness to the suspects; namely, those who are weak, vulnerable and confused.
The safeguards would also have the effect of providing additional protection for the police. They would avoid later challenges to the veracity of police accounts of what was said or not said at the interview. They would save that very lengthy and time-consuming process which took place in submissions before the courts before the introduction of PACE.
It is clear, therefore, that under the amendment a lawyer must be present or the offer of legal aid must have been refused, and that the purpose of the interview should be explained to the suspect. There should be a recording, and I hope that the noble Earl, Lord Ferrers, will not interpret that word in too limited a way. It could be a recording on video or audio tape, or an immediate hand-written note by the police officer. Whatever its form, a record should be available. Those factors should not be a hindrance—I do not see how it could be argued that they could be a hindrance—to the successful prosecution and conviction of professional criminals who are guilty of the offence with which they are charged. Many of them—most of them in all probability —will be professionally represented already. As we 500 know, those accused of terrorist offences could well have been coached in advance in exactly what they should say.
The amendment would strengthen the Bill. There is no reason to suppose that it would undermine it. It is not a new idea. The noble Viscount, Lord Runciman, will recall that the minority members of his Royal Commission were in favour of a degree of curtailment of the right to silence, but with the addition of safeguards. We have heard very little in these debates so far about the report of the working group on the right of silence that was set up by Mr. Douglas Hurd when he was Home Secretary in 1988. The report was published in 1989, and I have a copy of it in my hands. The working group was chaired by a senior civil servant, one of the Home Secretary's own advisers. He wrote, of the judge's summing up at a trial:The judge will also have to invite the jury to consider whether, at the time when the accused failed to mention the relevant fact, he had had the benefit of proper safeguards, such as being cautioned about the consequences of silence, access to legal advice, and the special safeguards afforded to juveniles and mentally ill or handicapped".Appendix D contained a text of the guidelines which it was proposed should be adopted. I shall not rehearse those in full since there are seven of them, but the word "safeguard" is used on several occasions in the appendix to the report. Those itemised safeguards are the ones which the noble and learned Lord, Lord Ackner, has incorporated in his amendment in more succinct form.
Am I alone or did I detect in what the noble Earl, Lord Ferrers, said in his reply to the earlier amendment a hint of open-mindedness on this matter? If that is so, and if the clauses survive, the amendment then becomes of considerable importance to the future of this measure on criminal justice.
§ Lord Archer of Sandwell
A few moments ago the noble and learned Lord, Lord Simon, reminded the Committee that under existing law there are three stages in the investigation of an offence by a police officer. The first is when the officer is simply seeking to ascertain whether an offence has been committed and perhaps the identity of the person with whom he is discussing it. The second is when the officer has reason to believe that that person has committed an offence and, at that stage, Code C under the Police and Criminal Evidence Act requires that certain steps shall be taken. There shall be a note made of the questions and answers. At an early stage that note should be offered to the suspect so that he can read it through and signify whether he agrees with it. There is then the stage when the suspect is arrested and at that stage, under Code C, further safeguards come into existence. The suspect must be taken to a police station and must not be examined further until he reaches the police station. The suspect must be offered legal assistance. All the other safeguards then follow.
If, at any of those stages, the appropriate safeguards are not observed—and the safeguards are there for all the reasons that were indicated by the noble Lord, Lord Windlesham, a few moments ago and exist largely to eliminate arguments about what was said and whether it 501 was said without due consideration—there is usually an application to the trial judge as a matter of discretion to exclude evidence of the answers. That obtains even if the question evoked a confession. So, even if there is a confession, fairness is usually thought to require that evidence of it should be excluded.
If even evidence of a confession is excluded on the grounds of fairness, surely it must follow that evidence of silence should be excluded. Normally, that would be the position under existing law. Unhappily, however, as the noble and learned Lord, Lord Simon, pointed out, the Bill does not distinguish those three stages nor their consequences, so we cannot fit into the Bill the safeguards that should come into play at each stage. However, the amendment of the noble and learned Lord, Lord Ackner, goes very far to remedy that defect. For that reason, I hope that the Committee will support it.
§ Lord Hailsham of Saint Marylebone
Perhaps I may add just a word or two to what I said previously. I thought that I detected a note of criticism from my noble and learned friend Lord Ackner who pointed out that in my previous remarks I had not said anything about the information which might be available either to the police or to the learned judge, but not to a jury, concerning the previous record of the accused and so it is rightly excluded on the basis that it would have an emotional effect on a jury or tribunal that is disproportionate to its probated value. Perhaps I may respectfully say to my noble and learned friend Lord Ackner that I wholly agree with that general proposition and that I omitted that aspect of the matter intentionally because it did not seem germane to the point that I was seeking to make.
Having said that, I do not believe that, as drafted, the present amendment will do. It makes too many assumptions about the circumstances in which the silence or the speaking of the accused or the suspect takes place. Take this simple example. Let us suppose that a man knocks at your door. You appear at the door of your house and in reply to a question as to your name, you say, "Yes, I am Mr. Quintin Hogg"—I use that name without prejudice—and you add the words, "It's all right, Robert, it's a fair cop", I rather doubt that the absence of a tape recorder ought to do me much good and nor do I think that if I did not have a lawyer present, that ought to do me much good. In that supposition of a case, the policeman would not have had an opportunity, having asked a very simple and proper question as to my identity, of informing the person concerned of the purpose or nature of the questions that he is to be asked.
Therefore, I do not think that, as a piece of parliamentary draftsmanship, the amendment will do. However, I suggest that those are all factors that we should take into account during the course of these proceedings. My belief is that we shall not reach a final conclusion in Committee. We shall probably have to return to this matter at a certain stage on Report. I shall say no more.
§ Lord Ackner
Does my noble and learned friend appreciate that my amendment is dealing with silence 502 and not the characteristically communicative way in which he greeted the policeman? That would of course be foolish but wholly admissible as the law now stands.
§ 4.30 p.m.
§ Lord McIntosh of Haringey
The words of the noble and learned Lord, Lord Hailsham, are undoubtedly wise. It may well be that we are unable to reach a firm conclusion in Committee. I hope that he is wrong because I believe that there is an alternative; that is, the package presented in the group of amendments which will be led by the noble Viscount, Lord Runciman. There is no doubt that if the amendments tabled by the noble and learned Lord, Lord Ackner, were carried the Bill would be better than it is. Any safeguards of the kind that he proposes are of benefit and to that extent my noble and learned friend Lord Archer is right.
As with the amendment tabled by the noble Lord, Lord Campbell, I hope that the noble and learned Lord, Lord Ackner, will not pursue his amendment to a Division. A number of Members have suggested that we should take a decision on the circumstances under which we need to have Clauses 32 and 33 in the Bill. That opportunity will be provided by the next group of amendments. According to the way in which the vote went, we could return to more detailed questions of safeguards at a later stage. I urge the noble and learned Lord, Lord Ackner, not to press this series of amendments to a vote.
§ Lord Campbell of Alloway
I totally accept that the amendment tabled by the noble and learned Lord, Lord Ackner, is better than nothing and will improve the Bill. However, as the noble and learned Lord, Lord Hailsham, also said, I sought to point out my reservations, which may or may not be right or find favour when the matter is considered in detail.
As the amendments stand, in particular as regards Clause 35, they are not quite right and require further consideration. I agree that the whole matter should be further considered and that we should come back on Report if possible with an agreed amendment in the spirit mentioned by the noble and learned Lord, Lord Lowry, on Second Reading.
I do not seek to criticise the amendment tabled by the noble and learned Lord, Lord Ackner; I have given my reservations. However, I hope that he will withdraw it so that further consideration may be given to the matter.
§ Lord Elton
In order that consideration may be mature, will my noble friend Lord Ferrers help the Committee on a point which I have briefly raised? Members of the Committee have heard many illustrations today. The subject, unless mentioned by my noble friend Lord Renton or myself, has been a competent adult. As I read the Bill, Clause 32 makes no mention of the age of the person concerned. As Clause 33 specifically disapplies the clause to children, who are defined in Clause 36 as people under 14, it follows that the clause will catch children and that a proportion of them will be the same children who are caught by Clause 1, on which we devoted some time last week as regards secure training orders.
503 In those circumstances there is a need for reliable safeguards. Although Clause 32(1) (a) strikes very wide and includes the failure to mention any fact relied on in his defence—and that may be at the beginning of the whole story on a dark and windy night on the doorstep —there is the modest safeguard in line 18. That provides:in circumstances existing at the time the accused could reasonably have been expected to mention".There is therefore some element of intelligent clemency.
My anxiety is further aroused not merely by the maturity of the people who may be concerned. They ought not, as in the amendment tabled by the noble and learned Lord, Lord Ackner, to be allowed to sign away their right to have a lawyer present. I dare say that there are other provisions in statute which will prevent that, as is the case in paragraph (b) of his amendment. Clause 32(4) provides:This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders".As the ignorant spectator of this rather splendid and interesting tennis match, I would like to know who those people might be, the kind of questions that they would be likely to be asking and the penalties to which those who were questioned by them might be liable. I believe that Members of the Committee consider that, in respect of this point, there is a need for reassurance and for safeguards in the Bill. Children stand in need of that more than most.
§ Lord Hooson
For a number of years it has been known on these Benches that I have been in favour of modifying the right of silence but only in carefully structured circumstances. Indeed, I have spoken in the House about it. We should all do well to consider the pressure that has arisen to do away with the right of silence. When I started at the Bar there was no real pressure. That pressure has grown because of the increase in offences such as the carefully organised terrorist offences and internationally-planned crime, in particular in drugs and so forth. It is difficult for the police to deal with those matters. The pressure to modify the right of silence has not grown as a result of the ordinary run-of-the-mill criminal investigations by the police.
I have always taken the view that in certain circumstances an interrogatory element should be introduced into our law. I have suggested that in certain terrorist cases and serious matters a magistrate should be called to preside over the interrogation of the suspect. The interrogation would be conducted not by the magistrate but by the police in the presence of a lawyer, if necessary, on behalf of the accused. The lawyer would have no right to intervene but would have the right to advise his client. In such a structured circumstance the right of the prosecution to comment on the silence should be granted.
In present circumstances the great problem with any kind of amendment to the right of silence is that the safeguard proposed by the noble and learned Lord, Lord Ackner, merely helps the people who benefit most. They have been carefully tutored in our law to use the right of 504 silence to their greatest advantage. For example, paragraph (b) of the amendment requires a lawyer to be present. The sophisticated people who advise terrorists and internationally organised criminals would immediately advise that no lawyer should be present. That would, therefore, do away with the right to comment.
I entirely agree with the noble and learned Lord, Lord Ackner, that if one is to modify the right of silence one needs considerable safeguards. One must ensure that the man who is easily influenced by the police and by the atmosphere in the court, or the man who by misfortune is holding something back because it is highly embarrassing to him or to his family, is safeguarded. I doubt whether this kind of amendment can achieve that.
The more that I have listened to and read about these matters the more I believe that until we have had a basic reassessment of the way in which we deal with the highly internationally-organised terrorist offences and other sophisticated, internationally-planned criminal activities it is better for us to preserve the right of silence exactly as it is.
§ Lord Monkswell
I am rather hesitant about entering into the debate as I am not a lawyer nor do I have much experience of courts and so on. But we are discussing, as I understand it, the general subject of the right to silence. The noble Lord, Lord Renton, mentioned the difficulties faced by people who may have a mental illness or a mental handicap. The noble Lord, Lord Elton, has highlighted the problems with regard to children.
Perhaps I may speak on the subject of what I might generically call "honourable people" as being an exception to the generality. We can all understand the laudable wish of the police, the judges and lawyers to hasten the process of justice to ensure that guilty people are put behind bars as quickly and as efficiently as possible. Therefore, they put pressure on people or encourage people involved in criminal investigations to come forward with explanations of their circumstances. However, I am curious as to how safeguards can be built in with regard to the right of silence—that is, having a lawyer present and a tape recorder running—if the person says nothing. Let us suppose that an accused says nothing and is effectively silent. Let us suppose that that fact is then brought to the attention of the court and that the court is told that although he had a lawyer present and a tape recorder running the accused was still silent. The implication is that the court is being terribly reasonable and that everything has been done to protect that person and so on. Still that person is silent. What inference will be drawn from that?
Perhaps I may suggest a few reasons why someone may be silent; first, to protect his good name. I shall tell the Committee a little joke which may help to illustrate my point. A farmer once showed some people round his farm and they noticed that there was a patch in the field that was uncultivated. They asked the farmer why that patch was uncultivated and the farmer said, "That is where I had my first sexual experience". The people then said, "But there is another patch in the same field a little further away. Why is that uncultivated?" He said, "That's where her mother stood". They said, "What did 505 her mother say?" "Baa," was the response. That is rather a poor joke but it may help to illustrate why someone may be in a particular place but may not wish to talk about it or give any explanation as to why he is there. It may be that he was there because it had a particular association for him, something which involved no criminal activity but which would reflect badly on the name of the individual involved which he would not wish to become public knowledge.
People may be silent in cases where the honour and reputation of someone else is involved. If that were the case and the identification of someone would cause damage to be suffered to his good name, although again no criminal act had taken place, an honourable person may wish to prevent that fact coming into the public domain.
We must recognise that at present, the criminal justice system leaks like a sieve. Effectively, information which comes to the knowledge of the police very rapidly finds its way into the public domain and into the newspapers. One has only to remember the newspaper reports which followed the unfortunate death, in rather curious circumstances, of a Member of the other place not too long ago to realise how that information can become public knowledge.
There are a whole range of perfectly valid reasons why honourable people may wish to be silent when questioned by the police. They may keep that silence to the point of conviction itself for reasons that were important to them as individuals. They may not feel that it was right for them to seek to defend themselves or to give an explanation of the circumstances. It is important that we should recognise that that is a perfectly justifiable course of action for a person in this country to take. Therefore, the right to silence should not be denied in the terms proposed by the Bill.
§ 4.45 p.m.
§ Lord Wigoder
I agree with my noble friend Lord Hooson that Clause 32 should not stand part of the Bill and in due course I shall seek to contend that. Should it do so, I disagree respectfully with my noble friend because I do not believe that there is time for the basic reassessment for which he perfectly properly calls. If Clause 32 stands part of the Bill, we should espouse the amendment in the name of the noble and learned Lord, Lord Ackner, as the basis for discussions to ensure that fully satisfactory safeguards are written into the Bill.
I am encouraged by the thought that should the amendment be tabled again on Report, the noble Earl, Lord Ferrers, is bound to receive it with enthusiasm. After all, it would represent the views of the minority of the Royal Commission and it is that minority, on this issue, whom the Government have praised so often for their perception and wisdom.
§ The Lord Bishop of Lincoln
I wish to support what the noble Lord, Lord Wigoder, has just said. That image of a silent and innocent defendant lies deep in our Judaeo-Christian tradition. Members of the Committee will recall that in the Old Testament, the Prophet Isaiah speaks of the servant of the Lord as being oppressed. He was oppressed and he was afflicted and yet he opened 506 not his mouth. Those verses reappear in the New Testament in Acts at chapter 8, verse 32, at the conversion and baptism of the Ethiopian minister by the deacon Philip. Those words are clearly intended to refer to the conduct of the innocent Jesus at his. trial.
That tradition gives the Christian Church a special concern for the rights of the innocent and particularly those who are weak and not readily able to speak for themselves. It is against the background of that religious tradition and the practice of law in this country, and given the findings of the recent Royal Commissions, both of which sought to maintain rights to silence as essential safeguards against miscarriages of justice, that I should wish to reject Clause 32. I wish to argue also against the proposed new wording of the caution to be administered by the arresting and charging officer. I believe that that is confusing for a vulnerable defendant I believe also that it is modelled on the caution currently in use in Northern Ireland which has not been shown, it seems to me, to have improved the conviction rate in that jurisdiction.
Drawing adverse inferences from the silence of suspects and defendants on arrest in the police station and during trial would, in the opinion of many it seems, reverse the traditional presumption of innocence. I therefore ask Members of the Committee to associate with me in supporting the comments recently made by the noble Lord, Lord Wigoder, and to reject Clause 32.
§ Baroness Elles
Perhaps I may draw the attention of the Committee to a recent article written by a former police Commissioner, Sir Peter Imbert, which was reported in The Times on May 17th. He says:'The Government does not want to abolish a suspect's right of silence. What is suggested—and what the Lord Chief Justice: appears to support—is a right to comment by the prosecution if the defendant—having maintained his silence until trial—then advances as his defence an apparently innocent explanation which a reasonable person could have been expected to have given earlier".I suggest that that is a perfectly fair and reasonable comment. I am very grateful for the comments made by the noble and learned Lord, Lord Ackner, in setting out the terms of Amendment No. 25A. I believe that that goes some way to providing the safeguard measures, which seem to be absent at present from Clause 32.
I support Clause 32, especially in view of the great experience of Sir Peter Imbert who is a very wise man and widely respected both by lawyers and the police. The latter have a very difficult job to do. One of the objectives of the Bill was to convict apprehended criminals who can be proved to be guilty and to uphold such convictions. We have seen from very well-documented publications by Justice (which I have read with the greatest care) that there have been several cases where the unfairness at a trial led to the quashing on appeal of the conviction.
Therefore, we have two tasks before us. First we must possibly accept Clause 32. However, perhaps my noble friend Lord Ferrers would be willing to give some indication—and I believe that he has given some slight indication—that the Government would be willing to consider further safeguard measures which would meet the test of fairness and which, frankly, are not in the Bill at present. I believe that many Members of the 507 Committee would wish to support Clause 32 provided that there was some way for all those who have tabled amendments or others who seek to support such amendments to provide adequate safeguard measures —and, indeed, the Government might take up such amendments—to discuss such matters between now and the Report stage.
Secondly, I ask my noble friend the Minister to consider the following. After hearing my noble friend's response, it is possible that the noble and learned Lord, Lord Ackner, will be willing to withdraw his amendment on the understanding that my noble friend the Minister will take very seriously the comments that have been made with regard to safeguard measures and agree to come forward with further proposals on Report.
§ Lord Annan
I hope that the suggestion of the noble Baroness will be taken seriously by Members of the Committee. It seems to me that we are slightly in danger of discussing whether Clause 32 should stand part of the Bill. However, I am sure that the Committee really wants to hear the noble Earl's reply to the noble and learned Lord, Lord Ackner.
The noble and learned Lord, Lord Ackner, is always penetrating in his advice, suggestions and amendments. Indeed, he has been so today. I rather agree with the noble Lord, Lord McIntosh of Haringey, who said that he hoped Members of the Committee would not vote on the amendment. I have been asked by several speakers—notably, the noble Lord, Lord Annan, and my noble friend Lady Elles—whether the Government will consider such matters.
At the beginning, I said that we all have firm positions on principles. In other words, we will think various things and Members of the Committee will also have their views about the right to silence. How one operates the right of silence and puts it into practice is a matter of detail. We wanted to listen to what was said so as to ascertain the views held. Although we feel—as I hope to show when we discuss Clause 32 stand part —that there is a very important case for Clauses 32, 33 and 34, we would be the first to say that we have, as I said before, no monopoly of wisdom over the detail of such matters. We would certainly wish to hear the views expressed by noble Lords. I shall ensure that the views expressed will be taken into account.
Of course, I cannot give my noble friend Lady Elles the assurance that I shall return with a perfect amendment on Report. However, as I said, I shall ensure that such matters are taken into account. Similarly, I cannot give the noble Lord, Lord Wigoder, the lovely assurance that he wanted; namely, that whatever we bring back would have the enthusiastic support of the Chamber. Indeed, it depends what comes back. Nevertheless, that will be considered.
My noble friend Lady Elles was quite right to draw us back to the issue that we are really discussing—that is, the kind of evidence which is produced in a court which is unsuspected and unknown and which can, so to speak, totally throw everyone. The noble and learned Lord, Lord Archer of Sandwell, asked why fairness could not also apply to silence. The evidence of the 508 accused's silence on police questioning could be excluded by the judge under Section 78 of the Police and Criminal Evidence Act if to admit it would be unfair.
My noble friend Lord Windlesham was concerned about safeguards and asked what the report of the Home Office working group had to say on the matter. That working group simply recommended that the court should be able to take into account whether the appropriate part of PACE safeguards was followed. The Government's proposals would allow a court or a jury to take that factor into account if they thought it was right to do so. It would be for the court or the jury to decide what inference they could properly draw in the circumstances.
My noble friend Lord Elton was concerned about children. I can assure him that all the clauses apply to children, except for Clause 33. The age limit for children is 14. My noble friend was also worried about Clause 32(4) which refers to Customs officers and others who are charged with a duty of investigating offences. The clause does not create any new penalties for failing to answer such questions.
As regards the matter that we are now discussing, I have already said that I shall certainly take into account the views expressed. However, I hope that Members of the Committee will also take into account the Government's reasons for putting such provisions in the Bill. They are important reasons, but we shall discuss that aspect in relation to clause stand part. What we are really concerned with is whether information given to the police at the scene of a crime should be available to the court. The fact that a man replies, "I am not saying" when questioned by a policeman is a matter of importance. The noble and learned Lord, Lord Ackner, said that he should be allowed to have a solicitor present. However, one then moves into the formal interview mode which is available at the police station, but one does so at the scene of the crime. The noble and learned Lord also said that the person should then be told the purpose and the nature of the questions that he will be asked. However, that is not the point. When a policeman first asks such questions at the scene of the crime, he may not know whether an arrest will be made or who will be arrested. Nevertheless, the person concerned may say something which is a matter of importance.
The noble and learned Lord said that the interview should be tape recorded and my noble friend Lord Windlesham said that we should use the word "recorded" in its broadest sense. Of course, we should like to do so; but the amendment refers to a "tape recording". We then return to the point that I made in relation to the amendment of my noble friend Lord Campbell of Alloway; namely, that it is very difficult to tape record something unless you use a portable tape recorder. Moreover, a portable tape recorder could be subject to all sorts of "monkeying" around and it would be most difficult to use as hard evidence.
I can see what the noble and learned Lord is anxious about. He is quite right to be anxious that there should be reasonable safeguards that what a person says should not be used in a way that would be deleterious or 509 offensive to him if used in the wrong context in court. But I would suggest that if we were to use the amendment of the noble and learned Lord and incorporate it into the Bill, we would in effect be shifting all the principles of the Police and Criminal Evidence Act, and the safeguards at the police station, to the scene of the crime. I believe that it would be difficult to do that. What we are concerned with here is where the police go to a scene and they do not know what has happened, who the accused is or anything else and they ask people various questions, and if a significant question were to be asked, or a significant answer were to be given, or not given, at the appropriate time, that should be available to the court for the court to decide the weight that should be given to that evidence.
I accept that these are complicated matters but I hope that the Committee will be prepared to consider all the points which the Government have made, and will make on these matters. The fact is that quite a few people nowadays get away with things because of certain protections which are available to them, and that can frequently result in the courts coming to a conclusion simply because the. evidence which has been available is not available to the court.
§ 5 p.m.
§ Lord Ackner
I am most grateful to the noble Earl for giving us, as I take it, an assurance that he will consider adding safeguards to this particular section. I do not suggest that what was said at the scene of the crime—if it is positive—is in any way prevented from being admissible. One is concerned with silence and only silence. I see no reason why at the interrogation where the lawyer is present, it should not be put to the accused, "When you were asked at the scene what explanation you had for being in the garden of the house where the burglary took place, did you not refuse to give any answer"? To which he may say, "Yes", or he may say, "No that is quite untrue", or whatever the reply may be. But this is an opportunity to get on record what took place at the scene and to avoid, I would have thought, all the kind of voire dire and complications which so often occur.
I do not propose to press this amendment at this stage although when the matter returns on Report I am sure that the Chamber will expect some positive input from the Government as to protection, particularly when one bears in mind that the Royal Commission's report has been out for nearly a year and what I have basically done is to incorporate in the amendment the views of the minority report to which the Government have so often referred back. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 32 shall stand part of the Bill?
§ Viscount Runciman of Doxford
I rise to oppose the Question that Clause 32 stand part of the Bill and to speak also to Amendment No. 26 standing in my name and the names of other noble Lords, and to the Question that Clause 33 stand part of the Bill. I have to admit I do so in a state of almost total procedural bafflement. The Committee must forgive me as my experience in the 510 ways of this Chamber is limited. I can only liken my feeling, if I can borrow a metaphor from the industry in which I gain my living, to navigating in the dark on a moonless night without radar in a busy shipping channel.
Let me try to explain the purpose that the four of us have in mind and let me also say, by way of preface, that I agree with what has been said by the noble and learned Lord, Lord Ackner, to perhaps a greater degree than might have been supposed by those Members of the Committee who heard us differ on certain aspects of the Bill on the debate on Second Reading. I greatly welcome what he has said this afternoon and I am modestly encouraged by the response of the noble Earl, Lord Ferrers, to what he has said.
The regime which we have in mind would serve the following twofold purpose. First, it would remove the risk of wrongful conviction resulting from undue pressure on vulnerable suspects in police custody. But, secondly, it would impose on the defence a requirement of disclosure when, but only when, the defendant has been adequately informed about the nature of the charges against him or her and has had, unless it has been explicitly refused, considered legal advice. Therefore it follows that adverse inference could then be drawn at trial if, but only if, a defendant had either failed without good reason to provide a defence statement or had departed substantially and without good reason from a case which had been disclosed.
I wish to emphasise, if I may, that the signatories to this debate and to the amendment cover all parts of the Chamber. This in my view is in no sense a party political matter and I am sure that every Member of this Chamber wants to see convicted at the conclusion of criminal trials only those defendants who are guilty beyond reasonable doubt of the offences with which they have been charged. The issue is—here I entirely agree with what I understood the noble Earl, Lord Ferrers, to be saying—how in practice to achieve that aim so far as human fallibility allows.
I do not wish to rehearse all of the arguments which were advanced on Second Reading by myself and by others against the Government's proposals as they now stand, but I must say that nothing I have heard or read since, including what I have heard this afternoon, has led me to doubt that I was right in what I told the Chamber would be the consequences if these proposals are passed into law in their existing form. They must inevitably increase to some degree the risk of innocent defendants being convicted of crimes which they did not commit. That is something which I do not believe any Member of this Chamber can contemplate with equanimity, least of all when we know that the safeguards in PACE have failed to prevent a small but disturbing number of cases where a person has been convicted on the strength of a supposed confession of a crime which, as it turned out subsequently, that person could not possibly have committed.
It is not as though there will be a concomitant increase in convictions of the so-called professional criminals which would not in any case be obtained on the strength of the evidence adduced by the Crown and 511 the direction which the judge will give, as now, where the defendant has said nothing to undermine, contradict or explain that evidence.
I recognise, of course, that there is room for argument on this issue and there has been debate—there was considerable debate in the Royal Commission—as to whether there is a case for amending the specimen direction which I used in the Second Reading debate as the basis on which I for one am satisfied that a jury will be properly directed. However, I defer to those whose experience of case law is a great deal better than mine. I am conscious that the noble and learned Lord, Lord Taylor of Gosforth, is sitting not far away on my left.
What will happen, inevitably, if this Bill is passed in its present form is that the length and therefore the cost of criminal trials will be significantly increased to no great purpose, if any, by the protracted legal arguments which there will be about the reasonableness of a defendant's decision to stay silent, as the defendant will have been advised to do, and the impropriety of any adverse comment on that silence. Indeed, several of the leading counsel whom I have consulted on this matter have said to me that if they had their own pecuniary interests at heart instead of opposing the proposals, as they do strongly, they would welcome them with open pockets.
In saying that, I am aware that the whole matter of prosecution and defence disclosure will feature in a subsequent Bill. That makes it all the more troubling that the Government should have proceeded on this issue without proper consultation, against the advice of the Law Society and the Bar Council, and also of the National Association for Mental Health which has voiced some serious anxieties, which were echoed in part in the remarks of the noble Lord, Lord Elton, and other speakers this afternoon. I share those anxieties. I am also grateful to the noble Lord, Lord Windlesham, for reminding your Lordships that the recent Royal Commission, although it was not unanimous on this matter, was unanimous in the sense that the minority agreed with the majority of nine that we must build on and not undermine the existing provision of the Police and Criminal Evidence Act and that any possibility of adverse inference from silence under police questioning must be conditional on legal advice and tape, video or some other form of recording of the interview.
Questions of disclosure and the question of the so-called right of silence ought, if possible, to have been debated together. It is a great pity that they have not been. Any proposed change ought to be analysed in the context of an integrated set of rules and procedures, all of which impact on one another. It is for that additional reason that I very much hope that between now and the Report stage there will be some move on the Government's part. No doubt others will make the same point later in this debate.
I have no difficulty in agreeing that adverse comment should be capable of being drawn from failure to provide a defence statement in advance of trial or from departure at trial from a defence previously disclosed. But the defence must be free to argue that in the circumstances of the particular case no adverse 512 inference from silence can properly be drawn. The requirement of defence disclosure must be conditional on prior disclosure by the prosecution and adequate safeguards for defendants, whatever they may be, but they must be adequate and they must be firmly in place.
I believe that the regime which we propose meets those three conditions. I believe that it is flexible as well as fair. And I believe that it deals effectively with the problem of the ambush defences while at the same time affording the right degree of protection against undue or improper pressure.
§ 5.15 p.m.
§ Lord Renton
The noble Lord's notice of intention to leave out Clause 32, his new clause after Clause 32 and his notice of intention to leave out Clause 33 are all grouped together. If those three Motions were to be carried that would produce a very strange situation in this Bill. Clause 32 deals with the:Effect of accused's failure to mention facts when questioned or charged".That is the first circumstance in which the so-called right to silence—which is somewhat misnamed—arises.
For the benefit of those Members of the Committee who are not legally qualified, and for the benefit of the media and the public at large, the right to silence will remain whatever your Lordships do with the Bill. What is to be restricted is the attitude which the court may take, whether magistrates or a judge in a trial on indictment, and the inferences which the jury may draw, whether or not invited to do so.
Clause 32 deals with questioning by the police and what may arise in those circumstances. The proposed new clause after Clause 32 deals with proceedings which may take place at the trial by way of service of notice on the defendant. I should note in passing that whereas Clause 32 refers both to proceedings before magistrates and proceedings on indictment, the new clause in Amendment No. 26 refers only to trial on indictment and therefore could not be thought to have replaced Clause 32. It is not a mere technicality; it is a question of real substance which we have to bear in mind.
I now come to Clause 33, which again deals with quite separate matters. It overlaps to some extent with what is set out in Amendment No. 26. The clause deals fully with the effect of the accused's silence at trial.
The noble Viscount, Lord Runciman, may have asked for those three matters to be grouped together merely so that the Committee can have a general discussion on all three. I shall gladly give way if the noble Viscount wishes to clarify the matter.
§ Lord Renton
I am most grateful. If that is the intention I can save the Committee's time by not raising other points that I had intended to raise.
I conclude by saying that I believe that it would be unfortunate if we were to omit from the Bill either Clause 32 or Clause 33. At present I am keeping an open 513 mind on the proposed new clause in Amendment No. 26 until I hear what my noble friend Lord Ferrers has to say.
§ Lord Stewartby
As my noble friend Lord Elton and others have said, this is a subject which can be considered in two entirely different ways. It can be considered either at a very sophisticated, technical, legal level or, by the rest of us who in terms of the voices raised this afternoon are certainly in the minority but I suspect in general are in the large majority; namely, those who have to come to the issues from a more general and non-professional point of view.
I have to warn the Committee that what I want to say on the subject is serious heresy. I do not mean heresy in terms of Canterbury but real heresy. If any Members of the Committee who belong to the legal profession have a blood pressure problem I suggest that this would be a convenient moment to have a cup of tea. I feel that in a debate of this kind it is necessary for somebody—and it looks as though it will fall to me—to put the flat earth view.
We have a serious problem, which is widely perceived outside, in that for all their tremendous integrity our legal processes in many cases throw up the wrong answers in the form of criminals being acquitted. Outside this Chamber, outside Westminster and outside the legal profession one could take it that a large majority of people in this country believe that the scales of justice are tipped much too far in favour of criminals and, by definition therefore, against the interests of the great mass of law abiding citizens of this country. That is why I so enormously welcome the inclusion of those clauses in the Bill. I deeply regret the fact that I have to make these comments in response to the noble Viscount, Lord Runciman, and to amendments which carry the name of my noble friend Lord Alexander and other noble Lords for whom I have great respect. Nothing I say diminishes the respect I have for them and for other noble and learned Lords in this House who have spoken today about the need to place safeguards on these provisions.
I am no longer closely in touch at the sharp end with the views of the electorate, as a few years ago I might have been. However, a brief sample of the views of the inhabitants of Stewartby at the weekend convinced me that views have not changed. It is generally regarded by the public at large that every acquittal of a criminal as a result of the technicalities or the safeguards of the legal system is in itself a miscarriage of justice. On its own it may be a rather modest miscarriage of justice, but cumulatively the fact that so many people who have committed crimes come before our courts and are not convicted offends many people outside your Lordships' House.
Perhaps I may say this to those who have developed the arguments for the sophisticated protection, the safeguards, which might be introduced in relation to these clauses. I hope that if such safeguards are acceptable to the Committee, they will not circumscribe the provisions in the Bill in such a way as to make them less effective in achieving the conviction of malefactors. Ultimately, the safeguard which every accused person 514 has is the judgment of the court. What is wrong with trusting the judgment of the court? The court has to work on the information before it. What we have been discussing regarding matters of silence is relevant information. Either the courts are equipped to make judgment in the light of the information before them, or they are not. If they are not, the whole of our legal system over many centuries has been a waste of time. I do not believe that that is the case. Why should those who enjoy the protection in our system of justice—and indeed there is much protection—have such protection if they are not prepared to participate in the system by answering questions which are put to them in the course of a case?
There has been much detailed discussion about the difference between silence before a case comes to court and silence after a case has come to court. I accept that there are differences. But ultimately there is one aspect which is the same. Concern has been expressed that these clauses would cause danger for accused who are in some way vulnerable: perhaps they are people who are timid by personality; they may be overwhelmed by the circumstances in which they are asked the questions; or there may be other such problems. But there are opportunities for those matters to be explained; and if we assume that courts are not capable of making a distinction between those who are carefully briefed to maintain silence and those who have been silent at a certain point for other reasons of vulnerability, then we indicate that we do not have nearly enough confidence in the courts. I hope that the courts can be trusted to make such distinctions.
What do the innocent have to hide? They have nothing to hide. What do the vulnerable have to fear if it is possible for them or their representatives in court to make quite clear the reasons why at a certain point they preferred or happened to remain silent?
This is a terribly heretical speech in the middle of a number of impressive technical legal contributions to our debates. I hope that the Committee will accept the speech in the spirit in which it is offered. I feel that sometimes in your Lordships' House—it is not a criticism of noble Lords—we become so preoccupied with the technicalities that for a moment we may take our eyes off the main issue. The main issue is whether we have a system of justice which by and large produces the right results. I think the Committee would have to admit that outside your Lordships' House it is felt that however subtle the process may be, if it tends to lead to the wrong results, that system needs to be looked at again.
§ Lord Bonham-Carter
Before the noble Lord sits down, perhaps I may ask him two simple questions. First, what is the evidence on which he speaks for the vast majority of people outside this House? Secondly, will he explain to me what he means by the acquittal of a criminal?
§ Lord Stewartby
I had sat down thinking that the Committee had had enough of me already. However, I shall respond to both questions. I said I believe that it remains the case, as I am convinced that it was the case at the time that I had the privilege and responsibility of 515 representing 80,000 of our citizens, that it is widely considered outside Westminster and outside the legal profession that too many malefactors fail to receive their just deserts because of technicalities in the legal system. That is all that I can say. It is my impression, and anyone can contradict it. My definition of a criminal is someone who commits a crime.
§ Lord Alexander of Weedon
I am most grateful to my noble friend Lord Campbell for giving way. I would certainly not wish to accuse my noble friend Lord Stewartby, for whom I have a very great and genuine respect, of being a heretic. But I know that he will bear in mind that slightly over three years ago a Royal Commission on Criminal Justice under the chairmanship of the noble Viscount, Lord Runciman of Doxford, was established, not because of concerns of society that we were failing to convict the guilty but because of concerns about wrongful convictions which were being seen to sap confidence in our system of justice.
I believe that the Committee today has to consider this issue with two objectives in mind: first, that clearly our system should be improved so as to convict more of those who are guilty; and, secondly, that it needs to be further improved to safeguard the rights of those who otherwise might be wrongly convicted. It is in that spirit that I wish to speak.
I thank the noble and learned Lord, Lord Ackner, for the meticulously fair way in which he stated my position and the position of Justice of which I am chairman. Those of us who oppose this clause are not just clinging to some outdated tradition; quite the contrary. For my own part, I have long argued that our trial system is inefficient and cumbersome and needs a much sharper focus. There is far too much scope for the defence to seek to confuse the jury. Justice demands not only fairness to the defendant but fairness to victims, witnesses, the public and, too, the tolerant juries. Therefore I willingly support the proposal that a judge should have the right to make sensible comment if a defendant does not go into the witness box when the case against him clearly calls for an answer. By then the defendant is advised by a lawyer and has ample time to seek to do justice to himself.
I also strongly endorse the proposal contained in one of the amendments that well before trial a defendant should be required to indicate the nature of the defence. When the prosecution case is known and the defendant has an experienced lawyer that is wholly fair. It should not harm, and indeed may help, the innocent. But it should also—and this is admirable—make it harder for the guilty to avoid conviction. I am wholly against surprise defences and I very much hope that in his response my noble friend Lord Ferrers will indicate his sympathy with our proposal in that respect.
In taking those steps forward to focus the trial, what we must not do, by one iota, I suggest, is to increase the chances of convicting the guilty.
§ Lord Alexander of Weedon
The innocent. I am grateful to my noble and learned friend for listening to me so carefully. I believe that changing the emphasis in the police station carries that risk. I acknowledge that the amendments proposed by the noble and learned Lord, Lord Ackner, would lessen the risk, but I remind the Committee that the amendments are no more than minima. Two members of the minority on the Royal Commission favoured change. They proposed the safeguards which the noble and learned Lord seeks to introduce and we do not yet know whether the Government will accept them. However, even if they were acceptable, like the noble Viscount, Lord Runciman, who chaired the commission, I go along with the majority on the commission.
We are not talking here about the risks to hardened criminals. I believe that hardened criminals in the police station would continue to play the system, whatever the law and whatever safeguards were in force. We are concerned about risks to the less intelligent. Research was carried out for the Royal Commission which showed that typical suspects—I am not now talking about hardened criminals—are neither intelligent nor lucid. Three clinical psychologists assessed 156 suspects in London police stations. They found them particularly prone to give misleading or incorrect information. The average IQ of the suspects was 82, within the bottom 15 per cent. of the general population. Ten per cent. of them were mentally ill, mentally handicapped or brain-damaged; another 5 per cent. had language problems or were illiterate.
Add to that that the police station is, I suggest, for many, however well the interview is conducted, a strange and intimidating place. A president of the Law Society who is a contemporary of mine and for whom I have the greatest respect said to me that his impression was that many duty solicitors find the police station intimidating.
Nor is it simply a matter, as is sometimes suggested, of explaining why someone is in a particular case. I remind the Committee that the clause indicates that an adverse inference may be drawn from a failure to disclose any fact at all which is later relied on by way of defence. Is that not a charter for questioning which could bear oppressively and unjustly on those who are less intelligent than noble Lords, who would instantly be able to handle lengthy questioning?
§ Lord Renton
It is good of my noble and learned friend to give way. I am not sure whether he was in the Chamber earlier when I said that in relation to Clauses 32 to 34 we had to consider carefully safeguards for vulnerable people. I used that comprehensive phrase to describe all those whom he mentioned. Is it not possible to accept the broad principle in Clauses 32 and 33 which we are now discussing and ask the Government between now and Report stage to consider ways of protecting the position of those who are vulnerable?
§ Lord Alexander of Weedon
That is obviously attractive in principle, but the real difficulty arises when 517 we look at it in practice. The overwhelming majority of suspects to whom I referred in the Royal Commission report were found to be vulnerable on analysis. But how will that analysis be conducted in the police station? How will the accused be able to deal with the circumstances in which they are put?
My noble friend Lord Renton said that the right of silence was not being removed. Theoretically, that is right. However, perhaps I may read the Committee the caution which, as I understand it, is the latest thinking as to what will be said to all those arrested in the police station in an unusual environment:I am going to put some questions to you. You are not obliged to answer them. But if you do not mention now something which you later use in your defence, the court may decide that your failure to mention it now strengthens the case against you".What is the average person to make of that? How real is the right of silence for that average person? Are we not perpetuating a fiction, pretending to preserve the right of silence but in fact making a grave erosion into it?
I remind the Committee of this. Two Royal Commissions in the past 15 years have cautioned against interfering with the right of silence in the police station: the Runciman Royal Commission and the Philips Royal Commission. The Philips Royal Commission said in 1981:It might put strong (and additional) psychological pressure upon some suspects to answer questions without knowing precisely what was the substance of and evidence for the accusations against them".When one comes to the Runciman Royal Commission, the majority endorsed that. The majority recommended against interfering with the right of silence. Yet, in weeks and without reasons, the Government had rejected that recommendation. That is why, although I strongly support the Government's basic objective of improving criminal procedures, with great regret and apologies to my noble friend Lord Ferrers, I find it difficult to go along with this measure.
§ Baroness Mallalieu
As a practising member of the Criminal Bar, I add my concern and opposition to Clauses 32 and 33. My opposition is shared not only by the Bar Council and the Law Society but also by the Criminal Bar Association, barristers and solicitors who both prosecute and defend, who are not motivated by political considerations and do not share the same political views but are motivated by a desire to see justice done and the avoidance of future miscarriages of justice both ways—that is to say, guilty people getting away with it and innocent people being wrongly convicted. It is significant that we all fear that the result of these clauses will be that more who are innocent of crime may be found guilty of it.
I do not wish to repeat what other Members of the Committee have already said, but perhaps I may try to rephrase the way in which the noble Earl, Lord Ferrers, tried to express the debate that we are having in a sentence. I would put it rather differently, in this way: should we elevate to the status of evidence something which is not evidence in our law at present?
The Home Secretary was kind enough to see those of us who are both members of the Bar and Members of this House and another place before the Bill started its 518 passage through Parliament. I know that the noble Lord, Lord Renton, was there. A number of those present were concerned about the evidential status of silence on the part of the accused if this part of the Bill becomes law. The Home Secretary explained it to us in this way. If an accused person says nothing, then that on its own will not provide the prosecution with a prima facie case. However, if there is any other evidence, the silence of the accused may be treated as evidence for the Crown and may therefore make the difference between a case which is stopped at the close of the Crown case as having insufficient evidence and one which is left to the; jury to consider. In other words, silence on the part of the accused thus becomes positive evidence of guilt as a result of these clauses.
For me and others, that causes great disquiet because it does not seem to lie well with the cardinal principle of the criminal law that the burden of proof remains on the Crown. It seems to me to chip away at that principle. To use an analogy that was used earlier by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in a case where there is insufficient evidence—amounting perhaps to a half on his scale—these proposals would add nothing to that half, leaving a case to the jury when it should not be.
Various Members of the Committee have spoken about vulnerable people and how they could be protected. The noble Lord, Lord Renton, in particular has returned to this matter. But vulnerable people fall into very many more categories than those who have already been mentioned. Vulnerable people decide either not to speak to police or ultimately at trial they decide not to give evidence for a variety of reasons. Of course there are some who do not speak because they are afraid that, if they do so, their guilt may be revealed. But there are also a great many more who are frightened. They are frightened of a policeman. They are frightened in court of facing what is perhaps generally regarded as a clever lawyer who will tie them into knots. There are people who are frightened because they are inarticulate and know that they are inarticulate; they are frightened of giving a poor account of themselves. And what about the bloody-minded?—people such as those referred to by the noble Earl, who say, when asked if they have anything to say, "Mind your own business". They may still be innocent. Perhaps they are vulnerable too. It is not just a question of physical disabilities, such as that referred to by the noble Lord, Lord Renton; there are other forms of disability and handicap which may greatly affect somebody's decision either to speak to the police or, later, to stand up on oath and give evidence before a jury. One should never forget that there are many people who are accused of crime who may be anxious to protect particularly friends or relatives, but also other people, and who do not speak for that reason.
Like the noble Lord, Lord Alexander of Weedon, I support Amendment No. 26. I accept that some changes are undoubtedly necessary to the present arrangements. I am very doubtful whether there are many so-called ambush defences. In 24 years at the criminal Bar I have never come across one; and I have come across very few other people who have ever done so. Nonetheless, it seems to me to be right and desirable that not only the 519 judge and the jury but also the prosecution should know the issues in a case when the case begins, and not wait to see what the defence issues are as the case unfolds. The provisions of Amendment No. 26 seem to me to be sensible and important ones.
The present law has the advantages of simplicity and clarity which are understood by everyone. There is no law at the moment of adverse inferences. There is no requirement to explain to juries what they might mean. These clauses take us into a minefield. It is a minefield of lay confusion. The noble Lord, Lord Alexander, had only to read out the caution to see where we are getting there. It is a minefield of extensive legal argument. I have to say, it is a lawyer's benefit. In every case, in the absence of the jury, there will be lengthy discussions as to what inferences can probably be drawn from the evidence and as to how the judge is to direct the jury. And subsequently, there will be lengthy appeals because the judge will be claimed to have got it wrong.
There is scope for misdirection. In other parts of the Bill the noble Earl is trying to make life easier for judges by assisting with simplification. But in this field he is providing a danger area which at the end of the day will undoubtedly lead to more appeals and more legal argument.
But above all, there is the danger of miscarriage of justice. I ask: for what? There has been no satisfactory evidence produced to indicate that this will result either in more justified convictions or in any reduction in crime. If the scales of justice really are to be tipped further in favour of the prosecution, they must not be tipped, as these clauses would bring about, in such a way as to cause the position of the innocent to be severely jeopardised.
§ 5.45 p.m.
§ Lord Taylor of Gosforth
I much regret that I was not present in the Chamber at Second Reading. I was sitting in court in Cardiff. I do not propose to deliver the speech that I might have delivered on that occasion. But in view of the opposition in principle to Clause 32 by Members of the Committee, led by the noble Viscount, Lord Runciman of Doxford, the Committee may wish to know my views as Lord Chief Justice. While they are my personal views, I know that they are shared by very many judges. Provided that suitable safeguards are in position, I am in favour of the changes that are proposed in Clauses 32, 33 and 34 and—it has been almost forgotten—Clause 35.
Perhaps I may begin by stressing what those clauses do not do. Despite frequent loose assertions to the contrary, they do not abolish the right of silence. A suspect or accused person is still entitled under those provisions to remain silent. Silence does not constitute a criminal offence or a contempt of court. If a defendant maintains his silence from first to last, and does not rely on any particular fact by way of defence but simply puts the prosecution to proof, then Clause 32 would not bite at all.
Again, it has been suggested that the proposals would shift or lighten the burden of proof which rests upon the Crown. Not so. The initial burden on the prosecution is 520 to establish a prima facie case which must be done by evidence other than the mere silence of the defendant. Unless that is done, there is no case to answer and none of the provisions as to comment on silence would come into play. If the case does go the full distance, the question at the end is whether the prosecution have established the guilt of the defendant so as to make the court or jury sure of it. That always has been the burden of proof and it remains so.
What then is the proposed effect of these clauses? Where there is a strong prima facie case against the accused at the end of the prosecution but it could be argued under the present law that there was a possible innocent explanation for the conduct of the accused which, while improbable, nevertheless raised a reasonable doubt as to his guilt, then, if the accused does not give evidence it will be open to the court to draw the inference that there is no reasonable possibility of an innocent explanation to rebut the prima facie case established by the prosecution, and for the drawing of that inference to lead on to the conclusion, after all the evidence has been considered, that the accused is guilty. That to my mind does not involve any shift or, with respect to the noble Baroness, Lady Mallalieu, any chipping away at the burden of proof. In this context, Clause 36(3) is of great importance. It provides that,A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 32(2), 33(4), 34(2) or 35(2)".In other words, the prosecution cannot rely on silence as proof of guilt.
A further misconception is that the provisions permitting adverse inferences from silence would apply in every case automatically. That is not so. First, the clauses permit such inferences in only three instances of a failure to answer police questions. First, where possession of some article makes the defendant a suspect; secondly, where his presence at some place makes him a suspect; and thirdly, in the event of his subsequent reliance on a fact at trial—not, with great respect, to the noble Lord, Lord Alexander of Weedon, any old fact—but a fact which, if true, he could reasonably have been expected to mention to the police during questioning. These are surely reasonable provisions. A man is found in your back garden with a bag of tools. Asked by a policeman why he is there, he says nothing. At trial he suggests for the first time that his employer sent him to do some joinery and he mistook the address. Why should he not have said that to the policeman when it could have been checked out? What is unfair about making a comment about his failure to do so to the jury?
Secondly—I am talking about how generally these provisions would apply—it would be for the judge to decide whether to make adverse comment and what advice he should give to the jury about drawing unfavourable inferences. Great anxiety has been expressed outside this Chamber and by a number of speakers today, notably the noble Lord, Lord Elton, about the vulnerable or the very young who may be disadvantaged by these provisions. Of course they must be very specially considered. But if such a defendant is 521 before the court it will be for the judge in his discretion and in fairness to that particular defendant to direct the jury on whether any adverse inference at all, and if so at what strength, should properly by drawn from silence. I believe that to be an important and realistic safeguard. If the judge, in a case which calls out for an indication to the jury that no adverse inference should be drawn, fails to tell the jury so, the Court of Appeal is there to correct any misdirection.
But these provisions are not directed towards the vulnerable or towards the common run of first offenders. The evidence before the Royal Commission from the the police showed that, by and large, those defendants respond freely to police questioning. Indeed, we have been told today that the vulnerable say all kinds of things that are inappropriate. We are not talking about silence in their cases. The evidence before the Royal Commission also showed, and judicial experience confirms, that it is the experienced criminals charged with very serious offences who most frequently decline to answer any questions. It is against them that these clauses principally, and in my view properly, are directed.
The proposals before the Committee are in almost identical terms to those recommended by a very strong Criminal Law Revision Committee in 1972. I remind the Chamber that that committee was presided over by that great and supremely fair judge, Lord Edmund-Davies, and included Lord Justice Lawton and a number of other distinguished judges and academics. Since then, there have been three changes which strengthen the case for implementing these proposals.
First, the Police and Criminal Evidence Act 1984 has introduced a regime of controls over police investigations and questioning which gives much greater protection to a suspect than existed in 1972. As the noble Viscount said, there have been instances where even that Act has not protected the defendant. We are dealing with human institutions. On occasions, and particularly if people are minded to undermine the system furtively, there will be instances where things go wrong. We must do our best to prevent that happening. But to abdicate any responsibility for receiving evidence about what happens before all the electronic devices are in place at a police station is to ignore a very fertile and important field of evidence.
Secondly, and in conjunction with the 1984 Act, the technology of tape recording has added greatly to the safeguards against any unfairness in police interviews.
Thirdly, the proposals of the 1972 committee were implemented in Northern Ireland in 1988 with an undertaking by the Government that the like provisions would be introduced here at a later date. I have had the advantage of detailed discussions with the judge who has had unparalleled experience of conducting trials under the regime proposed in these clauses. Sir Brian Hutton, who is presently Lord Chief Justice of Northern Ireland, has no doubt that the proposals have worked satisfactorily and have not introduced any unfairness into the proceedings. In that he agrees with his predecessor, my noble and learned friend Lord Lowry, who was present a little earlier and who supported these provisions at Second Reading.
522 It has been said that the Northern Ireland provisions have failed to increase the conviction rate in the Province. Indeed, the conviction rate has dipped slightly since 1988. Therefore, the argument runs, the changes, whether or not one likes them, have failed and will fail here to achieve their desired purpose. Had the conviction rate gone up dramatically in Northern Ireland, no doubt the reverse argument would have been applied that a lot of innocent people were being convicted.
With respect, that is a facile argument. There may be many reasons why the conviction rate in Northern Ireland has not markedly improved following the 1988 order. This is not the only ingredient in the whole recipe for criminal justice there. Statistics cannot indicate the number of cases in which people under question have chosen to speak whereas previously they would have remained silent; nor in how many cases defendants have given evidence at trial where previously they would not have done so.
Moreover, the same Justice report, of which organisation the noble Lord, Lord Alexander of Weedon, is chairman, deploys the contrary argument that under these provisions failing to testify at trial is likely to lead to the inference of guilt where previously it would not. Opponents of the provisions cannot have the argument both ways.
A criminal trial should not be a game. I am quite sure that most members of the public—juries are drawn from members of the public—would regard it as repugnant to common sense that no regard should be paid to the failure of a defendant to produce, when challenged at the scene, the trump card that he seeks to reveal for the first time at trial. There are those who accept that reality but say, "We need not make any change in the law because the jury can be relied upon to use its common sense". That amounts to saying that judges should continue to be bound to direct juries to have no regard to the defendant's silence at the scene of the crime, in the safe and cynical knowledge that, despite that direction, the jury will do what common sense dictates. I regard it as highly unsatisfactory that judges should go through a charade of telling a jury to ignore something in the expectation and hope that the jury will have regard to it.
The very sensible proposal put forward by way of amendment by the noble Viscount, Lord Runciman, and others, and recommended by the Royal Commission, is that the defence should be required to disclose the main thrust of its case at some stage after delivery of the prosecution papers and before trial. I applaud that suggestion. But in my view, which I hope will be echoed later by the noble Earl, Lord Ferrers, the proposals in the amendment and the proposals in the present clauses are not alternatives at all. We need both. The issues should be clarified before the trial starts by reciprocal disclosure. But there is a world of difference between the defence which may be conjured up after seeing the prosecution's papers, and after time for reflection and advice, and the immediate reaction when found in possession of goods or on someone else's premises. I hope that a future Bill will provide for defence disclosure but in my view it: is not a sufficient alternative to the clauses under consideration.
523 The noble Viscount, Lord Runciman, and the noble Baroness, Lady Mallalieu, sought to raise the spectre of lengthened trials and much money-making by lawyers if these clauses were allowed to remain. No doubt in the early stages of the application of these clauses there will be arguments and there may even be appeals. I would be the first to wish for any proposal to be scotched that would increase the number of appeals. But experience shows that, with any new statute, things settle down, rulings are given, the Court of Appeal lays down guidelines and eventually a modus is established. I do not believe that the spectre of lengthened proceedings is one which is of any material importance to the considerations before the Committee.
Perhaps I can finally say this—and if I am saying it in the wrong place, I am afraid that my unfamiliarity with procedures in this Chamber confuses me as much as it does the noble Viscount. Although I support the proposals in these clauses, I am concerned that Clause 32 at present is too widely drafted. It would permit comment at trial and adverse inference to be made from a failure at any stage to answer police questions. As we have already heard, there are some—including my noble and learned friend Lord Ackner—who would limit the comment on silence under that clause to the police station, where all the safeguards of the defence lawyer being present and tape recording are in place. That is a somewhat too limiting restriction.
As I suggested, there are cases in which silence at or near the scene of the crime is particularly important. However, I certainly believe that the suspect must be cautioned before he is exposed to the risk of his silence counting against him. He must know what is at stake before he decides to speak or hold his peace. I did not table an amendment to that effect for the debate today. However, I hope that further thought may be given to that 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.
§ 6 p.m.
§ Lord Carlisle of Bucklow
It is a great honour to follow the noble and learned Lord the Lord Chief Justice in a debate of this nature and it has the great advantage that much of what I wanted to say has already been said with far greater eloquence and authority than I could possibly muster.
I have this diffidence in speaking in this debate in that I realise that what I shall say runs contrary to the views of the majority of the members of the Bar Council and contrary to the views of Justice, both bodies of which I am a member and both bodies which I respect. But, like the noble Baroness, Lady Mallalieu, I spent my professional life prosecuting and defending in the criminal courts and have long been led to the view that the caution as it exists in this country ought to be changed; that in fact the balance has been tipped too far 524 evidentially in the interests of the accused. I do not believe that the grave anxieties expressed in the briefings that we received on this matter will be fulfilled as a result of the proposals.
As the Lord Chief Justice said, these clauses do not end the right of silence as such; we are not forcing anyone to give evidence; we are not requiring anyone to incriminate themselves. All they do is mean that in future the prosecution may comment and the court and the jury may, in appropriate circumstances, be invited to draw such inferences as they, the court and jury, think proper from the fact that the defendant refused to answer certain questions and failed to mention certain facts which he relies on for his defence and which, as the Lord Chief Justice said, he could reasonably be expected to have mentioned at the time he was being questioned.
I am bound to say that I see nothing wrong in such a proposal. Nor do I see anything wrong, if the court rules that there is a case to answer and the defendant chooses not to give evidence, in those who prosecute being able to make comment on that fact. The position at the moment is that the judge can comment on the inability of a defendant to give evidence. Surely in many ways it is much fairer that those comments should come from the prosecution as against the defence making comments as to why the defendant did not give evidence, rather than the judge looking as though he has been drawn into the arena to counteract the remarks made by the defence.
As we were reminded by the Lord Chief Justice, there is nothing new in the proposals. They were the recommendations of the Criminal Law Revision Committee in 1971 or 1972. At the time I happened to be a junior member in the Home Office under my noble friend Lord Carr. He will remember that those were recommendations made at that time and they would perhaps have been considered had an election not shortly afterwards intervened. They are in many ways common sense and I suspect that, as my noble and learned friend Lord Hailsham said, that is what happens in practice with juries at the present time.
My noble friend Lord Alexander said he was concerned that such proposals would put great pressure on the vulnerable and the weak. I am bound to say that it is not my experience that it is the vulnerable or the weak who rely on the right of silence. Equally, it has been said that it may put at risk those who are innocent. Again, it is certainly not my experience that it is the innocent who rely on the right of silence. On the whole it is the experienced criminal who refuses to answer questions.
People are concerned—and rightly concerned— about the fact that vulnerable and weak people have made confessions which turn out in the end to have been mistaken. However, I would point out that they were made at a time when the so-called "right of silence" exists. My experience is that those who are weak and vulnerable may tend to say a great deal at the police station and seldom make use of the right of silence.
The change to the caution was recommended in 1970, as the noble and learned Lord the Lord Chief Justice said. Since then we have had tape recordings of 525 interviews; the existence of duty solicitors, which means that practically everyone has access to legal advice; and the Police and Criminal Evidence Act, the provisions of which are aimed overall at ensuring that questioning is fair and reasonable. I have never understood why, if a person offers an explanation at trial which he has not given at an earlier stage and which common sense makes one believe that he should have given, the prosecutor should not be entitled to cross-examine on the line: "I hear what you say. If that is true, why did you not make that explanation at an earlier stage?"
I know that many others wish to speak in the debate, so perhaps I may close by making just two final points. First, there may well be perfectly legitimate and sound reasons why a person chooses to maintain silence both in the police station and in the court. But juries are not stupid. They are not required to draw inferences against a man because he chooses not to give evidence. They recognise the circumstances which lead people to hesitate to answer at a specific time. I have no doubt that, in relation to those who have reasonable and understandable reasons for choosing not to give answers, their representation at court and the arguments advanced on their behalf will ensure that they are not damaged by the proposals.
Finally, I say to my friends in the legal profession that, if an important witness for the prosecution made a statement to the police which omitted a fact which was highly damning or incriminating of the accused, and if he then made a second, much longer statement in which the damning and incriminating fact was adduced and that second statement was served on the defence by way of the evidence to be given by the witness, no counsel acting for the prosecution or, indeed, any police officer, would for a moment hesitate to draw to the attention of the defence the fact that the man had made an earlier statement which omitted that fact. Not only would that happen, but the defence counsel would then unhesitatingly cross-examine that witness by saying, "How do you ask us to believe this fact when on an earlier occasion, when invited to make a statement, you left it out?" He would argue that the jury should draw major inferences from the fact that on an earlier occasion the witness had chosen to fail to mention some fact. If that is true so far as concerns the prosecution in its statements of evidence, why on earth should it not be true for the defence? If the accused has deliberately refused to give facts which he knew to be relevant, why on earth, equally, should that not be known to the prosecution, and known through the prosecution to the jury, so that any proper inferences may be drawn?
Like the Lord Chief Justice, I support both clauses in principle, although, like him, I believe that Clause 32 as presently drawn is wider than it need be. I accept that there is a need for some form of legitimate limitation to the comment that can be made—for example, that the man must be cautioned or given the opportunity to have repeated the questions that have been put to him at this stage—but those are limitations on the clause, and not a reason for opposing the clause as a whole. I very much hope that the Committee will support the two clauses.
§ Lord Wigoder
I was more than a little astonished to hear the noble and learned Lord the Lord Chief Justice refer to Clause 36(3) as being in some way a significant protection for a defendant in showing, apparently, how fair the Government are determined to be. The clause provides that if there is no evidence against a defendant except that he was on some occasion silent, he cannot be convicted of a criminal offence. That is hardly an astonishing proposition or a very welcome proposition. It is hardly to be regarded as a concession that a charge of robbery with violence can be brought against someone and the prosecuting counsel can get up and say, "We have no connection between this defendant and this crime except one day a village policeman stopped him and asked him whether he was doing something or other and the defendant looked at him in an astonished way". On that evidence, according to Clause 36(3), that man cannot be convicted of robbery with violence. I should jolly well think not. I am astonished that anyone can look at a clause of that nature and say that it provides any kind of safeguard or protection to an accused.
At Second Reading I made two points about this matter which I certainly do not propose to repeat at this hour. One point concerned the vulnerability of a whole class of people taken to a police station who will, once these provisions are in effect, be encouraged to make a statement which may be totally untrue from start to finish. My second point was that more innocent people would inevitably be convicted and sent to prison for very long periods of time. Indeed, since the debate at Second Reading, there have been at least two cases in the Court of Appeal in which convictions have been quashed where people were said to have made statements that were accepted by a jury but were found by the Court of Appeal not to be reliable.
Nor do I propose to repeat what I said in the debate on the Gracious speech when the Session began many months ago; namely, that there are many cases in which the defendant has a perfectly good reason for not saying anything and which cannot be disclosed to anyone at the trial—to the judge, the jury or anyone else. As the noble Lord, Lord Monkswell, indicated, there are cases where a man's alibi involves his affair with his best friend's wife. There are cases where if a man were to tell the truth about a matter he would inevitably involve his brother who was obviously the person implicated in the commission of the offence. I have had cases of that kind in my experience. I am one of hundreds of members of the Bar who have had such cases. There must have been thousands of cases over the years of defendants who were totally unable for that reason to put forward any kind of story to the court.
In those circumstances, how can the judge, let alone the prosecuting counsel or the jury, make such inferences as appear proper? The judge does not know the facts upon which the inferences can be based. He may think he does, but he does not. In those circumstances, to extend comment on the exercise of the right of silence to the trial itself may have a disastrous result for some totally innocent people.
I know that time is running on so the only other thing I want to do is to call three witnesses on my behalf. I call 527 first, very briefly, the judges of the Supreme Court of the United States. In the Miranda case in 1965—I shall read only one short paragraph of their judgment—they said:To maintain a 'fair state-individual balance', to require the government 'to shoulder the entire load', … to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth … In sum, the privilege"—the privilege of silence—
is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will'.No one can argue that under the Government's proposals it would be the unfettered exercise of free will that led a person to continue to remain silent.
My second witness would be the debate in 1972 on the proposals of Lord Justice Edmund Davies' committee to abolish the right of silence. The debate was in your Lordships' House and numerous Law Lords took part. I think not one had anything other than serious criticism of a great deal of the report. Perhaps I may quote what Lord Salmon said in his maiden speech. He was probably one of the most experienced criminal judges of our time and one of the great judges of this century. Dealing with the right of silence, he said:I have perhaps the temerity to challenge the whole philosophy lying behind these recommendations; namely, that the rising wave of serious crime can somehow be stemmed by a relaxation of the safeguards which we have built up over the generations to ensure that the innocent shall go free. There is not a vestige of evidence to support this philosophy, and I would invite your Lordships to reject it". —[Official Report, 14/2/73; col: 1605.]For my final piece of evidence perhaps I may refer to a letter from three people who have held the office of First Senior Treasury Counsel at the Central Criminal Court. That position is held by the most experienced member of the team of counsel at our most senior criminal court, instructed by the Director of Public Prosecutions in the most serious of cases. They are people with unrivalled knowledge of the workings of the criminal law—I wonder whether I may say, even as much knowledge perhaps as the noble and learned Lord the Lord Chief Justice. They work for the Director of Public Prosecutions and they are only too anxious that the guilty should be convicted. The letter comes from John Mathew, who was Treasury Counsel for 18 years and First Senior Treasury Counsel for the past three; Roy Amlot, who was a Treasury Counsel for 12 years and First Senior Treasury Counsel for the past two; and John Nutting, who has been a Treasury Counsel for 13 years and is First Senior Treasury Counsel at this date.
With their unrivalled knowledge of the criminal law, this is what they wrote:At first sight this might appear to be a fair and sensible reform, but in our view the enactment of such a provision would in fact be a retrograde step effectively abolishing a suspect's right to silence. For the first time in the history of criminal justice a jury would be invited to draw an inference of guilt against a suspect who failed to give an explanation to the police. Such a situation would gravely affect the presumption of innocence in criminal trials which rightly remains the basis of our system of criminal justice. If a jury is to be told that it can infer guilt from a failure to provide an acceptable explanation after arrest it is effectively being told that it can infer guilt from a failure to establish innocence. In this insidious way a major step is taken towards 528 reversing the burden of proof. Juries will tend to say 'he has no right to be silent. He did not provide an innocent explanation to the police. We can say he is guilty'. This is a development in the criminal law which, if not prevented, is likely to contribute to injustice".That letter was sent not to me but to The Times newspaper, unhappily at a time when that paper was about to publish a leading article of its own to precisely the opposite effect. So, although that distinguished newspaper is the first to criticise anyone who ventures to suggest any measure of censorship of the press, it exercised its own degree of censorship and decided, rather sadly, not to print the letter. I do not suggest that there is anything startlingly original in the letter. What is startling and should be brought to the attention of the public is that it comes from three of the most distinguished exponents of the criminal law that we have had in this country.
When we come to divide, as I hope we shall, I ask the Committee to remove Clause 32 from the Bill and then to agree to the consequent amendment in the name of the noble Viscount, Lord Runciman.
§ Lord McIntosh of Haringey
I am quite incapable of following the learned and powerful speeches which have been made on both sides. I am not a lawyer. My understanding of these matters has been greatly increased in recent weeks, but it certainly has not reached the level of that of noble and learned Lords, and other noble Lords who are also learned in the law, who have spoken.
I wish to make two points about this group of proposals having urged both the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Campbell of Alloway, to withdraw their previous amendments. The first point is that, a week ago when we were debating secure training centres, the noble Baroness, Lady Faithfull, was powerfully attacked for seeking to take out from the Bill a series of clauses without putting anything in their place. I believe that the strength of the argument that what was being said was very largely negative had a considerable influence on the way in which the Committee voted on Monday of last week. That is not the case with this group of proposals, which suggest that Clauses 32 and 33 should be taken out of the Bill only in return for a new clause which would convincingly answer the only effective case which has been made in favour of the restriction of the right to silence; namely, the claim of an ambush defence. Therefore, the arguments which were used about our procedures last week simply do not apply in this case.
The second point is that I have listened very carefully to any examples—there have not been very many—in which there is a danger that the guilty might go free because of the exercise of the right to silence. Every single example which has been adduced in Committee this afternoon, including the Lord Chief Justice's man with a tool bag in his garden—I was not quite clear whether it was in his garden or my garden—would be answered by Amendment No. 26. All of them depend not on the exercise of the right of silence, but on the subsequent use of a defence which had not been disclosed. Therefore every single argument which has been adduced in favour of Clauses 32 and 33 is 529 effectively answered by Amendment No. 26. Without any disrespect to the array of legal talent which has been deployed on both sides of the argument, I urge Members of the Committee to bear those two simple facts in mind when they are considering how to vote on this issue.
§ Lord Hailsham of Saint Marylebone
I have very little to say. I have not so far spoken on this question. If I thought for a moment that either the right of silence —which is not a right of silence but a question of legal procedure and evidence—was in any way watered down by these clauses I would certainly be in the ranks of those who would have them expunged. I do not. Neither do I see the smallest chance of the burden or standard of proof being diminished by either of them. The fallacy was that of the noble Baroness, Lady Mallalieu. The effect of the clauses is that if the prosecution has made out a convincing case, the result of exercising your right of silence at the end is to establish that against that convincing case there is no answer and no evidence has been adduced. Juries will draw that inference. It is not an inference of guilt, but a conviction on the evidence before the court that the case has been made out beyond all reasonable doubt.
Apart from that, I was so impressed with what my noble and learned friend the Lord Chief Justice said that I do not believe that I can in any way add to it. His argument seemed to me to be absolutely conclusive. An earlier point that was made was taken up very clearly at another stage. That relates to the Northern Irish experience which put into effect the proposals of the Criminal Law Revision Committee 1972 which now has at least seven years' experience behind it both in criminal and civil cases. The effect of the intervention of the noble and learned Lord, Lord Lowry, by way of a maiden speech at Second Reading, has told us beyond doubt exactly what his experience has been; namely, that the administration of justice is being improved. One of the factors which has emerged is that the conviction rate is lighter under the Diplock proposals which are based on those recommendations than before when a case was tried by a jury.
The real fact is that we are all concerned about the possibility of miscarriages of justice. I believe that this is some guarantee that such miscarriages will not take place. We have all been concerned about long-standing convictions which have been quite rightly overturned by the Court of Appeal (Criminal Division) after years spent in prison by those involved. To my mind these situations fall into two classes and two classes only. The first is not relevant to the present question which we are discussing. That is when something has gone wrong with the scientific evidence. The other class is when, because of the complications and barriers to rational investigation put in the way of the police, they have taken the totally inadmissible course of concocting false evidence, which could not be prevented if you have artificial and wrong rules standing in the way of the investigation of truth.
In the end we are concerned with truth and not with any complicated legal question. We are concerned with the desirability of convicting the guilty and in seeing that nobody who is not guilty is the subject of an adverse 530 conviction. I believe that that rationalises the law. What is relevant should be admissible as a general rule and, subject to the qualification made by my noble and learned friend Lord Ackner, what weight should be given to the relevant admissible evidence before the court and what reliability can be attached to it, are questions for the tribunal of fact. I believe that that is all that can be said by a legislator. In the end we must trust to the operation of the judiciary, which is another branch of our constitution, to administer those simple common sense, logical principles in practice. Personally, I found the contribution of the noble and learned Lord the Lord Chief Justice absolutely conclusive on this question.
§ 6.30 p.m.
§ Lord Peyton of Yeovil
I wonder whether I may ask my noble friend two questions both relating to Clause 32 and upon which my own anxieties are centred. First —I do not know whether he can answer this at this stage —I should very much like to know what my noble friend's attitude to Amendment No. 26 is going to be. If he were going to accept the amendment, it would certainly make a difference to me.
The second question—I hope that my noble friend will deal with this reasonably fully—relates to the safeguards to Clause 32 because, as it stands, I view it with great unease. As the noble and learned Lord the Lord Chief Justice said in his very impressive speech, it goes a bit wide at the moment. It does. Its provisions apply long before cases come to trial. The noble and learned Lord the Lord Chief Justice said that the clause is not aimed against the weak, the foolish and those who cannot look after themselves, but there must be a considerable fear that such people will still be caught by it. When those people find themselves in very alien surroundings, scared, alarmed, with no advice as to their rights and not knowing what the case against them is, they are very vulnerable. Before I vote in favour of Clause 32 standing part of the Bill, I shall want to be very certain indeed that my noble friend Lord Ferrers has in mind an adequate armoury of safeguards against that happening.
As was expected, we have had a most interesting debate on this matter and all the arguments on both sides have been put most forcefully. Your Lordships are only too well versed in these complicated matters, but I agree with my noble and learned friend Lord Hailsham that the speech of the noble and learned Lord the Lord Chief Justice was deeply impressive. I was glad to hear it. The fact that he happened to agree with the Government's view of Clauses 32, 33, 34 and 35 was, if I may say so, helpful.
I must advise my noble friend Lord Peyton who asked about the Government's views of safeguards that I told the Committee in connection with earlier amendments that the Government do not consider that they have a monopoly of wisdom on these matters. We wanted to listen to see what your Lordships would say about safeguards. Equally, I hope that the Committee will consider the Government's view of why these clauses are in the Bill in the first place. I have not yet had the opportunity to explain that.
531 Clause 32 deals with a particular problem. It is very difficult to reconcile the present rules with what one might call plain common sense. Very often, the person who is best placed to explain the truth of events is the defendant. If he declines all opportunity to do so until the occasion of his trial, why should a court not be allowed to consider whether there was a good reason for his earlier reticence? Too often, police efforts to establish the facts of a case are impeded by those experienced offenders who exploit the present rules on silence. Whether their intention is to avoid charge, or to give themselves time to construct a plausible defence, it is not in the interests of justice that they should be allowed to take advantage of a feature of the criminal justice system which pre-dates the very many safeguards which are now in place to protect suspects.
I commend a remark which was made on Second Reading by the noble and learned Lord, Lord Ackner. He said that the current rules encourage solicitors to advise silence. It is time that we encouraged solicitors to say to their clients, "We should lose no time in putting forward your defence". The noble and learned Lord was right.
These are complicated legal matters and lawyers are right to argue the nuances and principles up hill and down dale to try to get the right result; as, if I might say so, your Lordships have done this afternoon.
However, there is another point of view. My noble friend Lord Stewartby put it very well when he referred to the point of view of the layman. One obvious role for the layman in the criminal justice system is to be a member of the jury. I suggest that when looking at these matters we could all do worse than try to put ourselves in the mind of a member of a jury. At present, a jury may learn about the fact that a defendant is telling a story at the trial which he did not tell to the police. Members of the jury will see for themselves whether the defendant does or does not give evidence at the trial. They may —I mean this simply as a matter of fact—wonder why the defendant was silent earlier. They may wonder why he does not give evidence at the trial. They may—who knows?—reach the conclusion that the story that they are now being told is unlikely to be true or they may think it odd that, if the accused has a defence, he does not tell them about it. But they are not allowed to hear any argument about that. If the matter is raised, they have to be told simply to put it out of their minds—no matter that they are curious; no matter that in any other normal transaction of life they might think it rather odd that a person is asking them to believe something which he or she is unwilling to state clearly out of his own mouth; no matter that a reasonable person looking at the circumstances of the case might think that some explanation was called for. As the law stands, the question is forbidden territory. We do not know— nobody knows—whether juries respect the prohibitions which the present law places upon them or whether they make a best guess at what the truth is: probably some do one and some do the other.
I agree with my noble friend Lord Stewartby that, looked at from a layman's point of view, that position is not easy to explain or justify. It is hardly the position 532 that one would invent if one were starting with a clean sheet of paper. It has arisen largely because of history and because when matters of this kind are discussed it is natural and traditional to think about them in terms of protection for the defendant. However, your Lordships may think that there is also a case for common sense to be the guide as to what the jury can hear and think.
The noble and learned Lord the Lord Chief Justice gave an example. Perhaps I may give an example. 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.
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 instead of saying that 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. Under Clause 32 it would be open to the court or to the jury to draw such inference as they think fit from the fact that when the men were originally encountered by the police they failed to mention their story that they were asking for directions. The inference that could be drawn might be—to put it no higher—that their story at the trial was unlikely to be true. I suggest that there is nothing wrong in allowing the court to take into account the fact that these men said nothing to the police and in allowing the court to draw such inference as it may think fit and proper. I would have thought that there was more to be said in favour of treating that evidence like any other evidence and of abolishing the restriction which at present prevents the court or the jury 533 from putting proper weight on it. At the heart of this matter is the failure to mention the fact at the first reasonable opportunity, and that that may be a matter which the jury might think worthy of notice.
My noble friend Lord Peyton asked me about Amendment No. 26. That does not deal with this problem, as the noble and learned Lord the Lord Chief Justice suggested. The problem is juries being unable to take into account the significance of the defendant's failure to answer a reasonable question at the first opportunity. Nor do I think that Amendment No. 26 can be seen as being a substitute for Clause 33, which has received widespread support from the judiciary, the police service and beyond.
We heard the views of the noble and learned Lord the Lord Chief Justice, with all the weight of his experience. I hope that I shall not embarrass the noble and learned Lord by quoting from what he said at the Tom Sargant Memorial Lecture, which he delivered in January. He said:When a prima facie case has been established by the Crown, and the defendant fails to testify, I see nothing unfair in the jury being told it is open to them to draw a proper inference from the absence of any answer by the defendant. Indeed, that accords with commonsense. The burden of proof remains on the prosecution to prove its case, but if they establish a case to go to the jury, that means that a reasonable jury, properly directed, could convict unless there is an answer. It is sensible that the jury may take account of the fact that no answer has been given by the defendant to draw the inference, if they think it right, that there is no answer".So said the noble and learned Lord.
Amendment No. 26 does not address the matter of the failure to give evidence at the trial. But in the Government's view there is room for improvement, and that is what Clause 33 is about. Clauses 32 and 33 should stand part of the Bill. As regards Amendment No. 26 and defence disclosure, the Royal Commission has produced a very interesting proposal but it is one which requires some pretty rigorous analysis before we embark on legislation. Defence disclosure is linked with the Royal Commission's recommendations on prosecution disclosure and on pre-trial procedures generally, all of which we are carefully considering.
The Government see attractions in that idea and we are carefully considering whether and how it might be put into effect. However, I believe that the noble Viscount, Lord Runciman, will acknowledge that the Royal Commission did not supply a precise blueprint for its scheme. Nor does this amendment. It proposes a power to make rules of the Crown Court dealing with the practical arrangements for prosecution and defence disclosure. Those rules would allow changes or additions to be made to prosecution or defence statements, would set time limits and would deal with other expedient matters.
These are not questions of mere detail. The obligations on the defence would be new and substantial. Before any legislation on these matters is introduced, it would be proper to consider very carefully how this scheme would work. What form would the defence statement take? Should it be a substantial statement of the nature of the defence case or just a matter of ticking a box, as the Royal Commission appeared to suggest? When would defence disclosure be 534 made? How would it be enforced? Would the prosecution be allowed to change the prosecution statement after the defence statement? Would the prosecution statement bind the prosecution? Would the police be allowed to question the defendant about any new issue revealed in the defence statement? Those are important questions which need to be resolved before Parliament embarks on a decision. They are not yet resolved.
It is for these reasons that we believe that Amendment No. 26 is not appropriate for incorporation in the Bill. For the reasons that I have given, it is essential that Clauses 32 and 33 are included in the Bill. We have heard the weighty arguments of the noble and learned Lord the Lord Chief Justice and other Members of the Committee. I suggest that if any Member wishes to put to the test that Clauses 32 and 33 do not stand part of the Bill, the Committee should vote wholeheartedly in favour of them staying part of the Bill.
§ 6.45 p.m.
§ Viscount Runciman of Doxford
I have listened with close attention to everything that has been said today. I find myself in a large measure of agreement with speakers from different parts of the Committee. However, before Members make up their minds on the issue that is now before us, I wish to take issue to some degree with what was said by the noble and learned Lord, Lord Taylor of Gosforth. Quite rightly, many Members of the Committee will have been influenced by what he said with all the authority of his experience and his office. I do not dissent for a minute with his remarks to the effect that there are many misconceptions, which he adroitly corrected, about the implications of this Bill or, more obviously, about the continuing need for greater safeguards, with which, in principle, I am entirely at one with the noble and learned Lord, Lord Ackner.
However, I ask Members of the Committee not to be influenced by whatever their views may be about the state of affairs in the very different jurisdiction of Northern Ireland. I made that point on Second Reading, when unfortunately the noble and learned Lord the Lord Chief Justice could not be present. I hope that I may be excused by those who heard me if I repeat that argument briefly. We are not talking about a regime of so-called Diplock courts and all that goes with them both in terms of rules and procedures and the background that led the Government to introduce that very different regime in that very different Province.
Secondly, I have to say that I cannot be happy with the suggestion that we can leave it all to the courts, or to the Court of Appeal, where a mistake is made at the trial of first instance. I really do not believe that it is good enough to say that if unfortunately the court of first instance gets it wrong, and someone who is innocent of the crime of which they are convicted goes to prison, it is all right because there is a good chance that after several years, as it may be, of languishing in prison the Court of Appeal will put it right.
I recognise that in particular in recent months or perhaps years the Court of Appeal has shown itself much more ready to overturn convictions where there is 535 reason to fear that a miscarriage of justice has taken place. I acknowledge the part which the noble and learned Lord, Lord Taylor of Gosforth, has played in changing the view of the Court of Appeal in the direction of a greater willingness to accept that miscarriages may have occurred. But it is precisely that which worries me when I contemplate the prospect of a regime in which it will be left to the Court of Appeal to correct wrongful convictions at the court of first instance.
That is linked in turn with the point which I made earlier but to which I have not received an adequate answer either from the noble and learned Lord the Lord Chief Justice, from the noble Earl, Lord Ferrers, or from any other speaker who takes a different view on these matters; that is, that the Royal Commission was unanimous about the need to strengthen the safeguards provided in the Police and Criminal Evidence Act. There is no question but that this regime will relax those safeguards. Therefore, we must decide a purely pragmatic question. As I said earlier today and on Second Reading, we all may differ in our views in principle but we do not differ as regards the aim; namely to do everything that we can to see that the courts get it right.
I ask Members of the Committee to consider whether they believe that, after all that they have heard, the risk of wrongful convictions will not be significantly increased if the Bill passes in its present form. Even if Members of the Committee think that there is such a risk, it is necessary to ask further whether it is thought that there will be any possible gain which will outweigh that risk in the greater likelihood of securing the conviction of defendants whose guilt would not be successfully established by the Crown—not, I emphasise, under the existing procedures but under the existing procedures as changed by the recommendations of the Royal Commission of which Amendment No. 26 is nothing more than a foretaste.
The point is that I do not pretend for a moment that Amendment No. 26 would, by itself, meet all the anxieties which have been voiced here this afternoon, and elsewhere, about the need to ensure that there are no miscarriages in the other sense; in other words, that people whose guilt is beyond reasonable doubt are acquitted when they should not be. But the noble Earl, Lord Ferrers, addressed many of his remarks to the Committee as though the alternatives were the status quo or the Bill which is now before us. That is not a real alternative. As I understand the matter, one alternative is the Bill as it now stands with all the criticisms which have been levelled against it from many different parts of the Committee. The other alternative is an opportunity to step back from those clauses and to substitute, in Amendment No. 26, the outline—and it is no more than the outline—of a regime which would meet all the anxieties that have been voiced without the disadvantages that I and others see as attaching to the Bill in its present form and which would be a part of the new regime envisaged both by the Royal Commission and the Government. I take the noble Earl, Lord Ferrers, to be saying, in effect, that there is, as yet, no firm 536 intention to implement precisely the recommendations which the Royal Commission put forward to deal with the very complex and interrelated issues of prosecution and defence disclosure and all that goes with that. However, I understood him to say that there is an intention to deal with the substance of our recommendations in one form or another. I should be the first to agree that we did not believe that with the recommendations we were laying down a blueprint so that the Government had merely to put the parliamentary draftsmen onto the job and then get a single Bill through Parliament in a matter of weeks. These are very complicated issues.
For that reason, I had hoped that the noble Earl would give some indication that the Government are prepared to take account of all the various misgivings about the Bill in its present form which have been voiced in the Committee this afternoon. I had hoped that the Minister would indicate not merely that the Government are open to suggestions as regards a little tinkering with the safeguards provided in Clause 32, but that there would be a serious willingness to reconsider the issues in order to bring in a regime which would implement in part what we are trying to achieve with Amendment No. 26; namely, what is covered in part in the Royal Commission's report but what has not yet been addressed in legislation. At the same time, I do not feel that the concerns about safeguards which have been voiced this afternoon have been addressed adequately in the noble Earl's response.
I had hoped not to feel bound to take the opinion of the Committee this afternoon because, as I say, this is not in any sense a party political matter. We should be all at one in trying to see how we can best ensure that in criminal trials a jury—and I am thinking in particular of cases which are sufficiently serious to come before a jury—gets it right. As I said in my maiden speech, that is a wholly uncontroversial aim. The question is how to achieve it. I am afraid that the assurances which the Minister gave in response to criticisms of Clause 32 are insufficient. I must remind the Committee that the Question that Clause 32 stand part is linked with Amendment No. 26, as is the Question that Clause 33 stand part. Therefore, I feel bound to test the opinion of the Committee on those issues.
§ 6.56 p.m.
§ On Question, Whether Clause 32 shall stand part of the Bill?
§ Their Lordships divided: Contents, 176; Not-Contents, 114.537
|Division No. 1|
|Ackner, L.||Brabazon of Tara, L.|
|Allenby of Megiddo, V.||Bridgeman, V.|
|Annaly, L.||Brightman, L.|
|Arran, E.||Brougham and Vaux, L.|
|Astor, V.||Bruntisfield, L.|
|Attlee, E.||Burnham, L.|
|Belhaven and Stenton, L.||Butterworth, L.|
|Biddulph, L.||Cadman, L.|
|Blatch, B.||Campbell of Alloway, L.|
|Bledisloe, V.||Campbell of Croy, L.|
|Blyth, L.||Carlisle of Bucklow, L.|
|Boardman, L.||Carnegy of Lour, B.|
|Borthwick, L.||Carnock, L.|
|Boyd-Carpenter, L.||Carr of Hadley, L.|
|Chalker of Wallasey, B.||Mancroft, L.|
|Charteris of Amisfield, L.||Mar, C.|
|Chelmsford, V.||Marlesford, L.|
|Chesham, L.||Marsh, L.|
|Clanwilliam, E.||Merrivale, L.|
|Clark of Kempston, L.||Mersey, V.|
|Clitheroe, L.||Middleton, L.|
|Cochrane of Cults, L.||Morris, L.|
|Coleraine, L.||Mottistone, L.|
|Colnbrook, L.||Mountevans, L.|
|Colwyn, L.||Mountgarret, V.|
|Courtown, E.||Moyne, L.|
|Craigmyle, L.||Munster, E.|
|Cranborne, V.||Murton of Lindisfarne, L.|
|Crickhowell, L.||Nelson, E.|
|Cross, V.||Newall, L.|
|Cumberlege, B.||Norrie, L.|
|Darcy (de Knayth), B.||Oppenheim-Barnes, B.|
|De L'lsle, V.||Orkney, E.|
|Dean of Harptree, L.||Orr-Ewing, L.|
|Denham, L.||Palmer, L.|
|Denman, L.||Pearson of Rannoch, L.|
|Demon of Wakefield, B.||Peel, E.|
|Digby, L.||Pender, L.|
|Dixon-Smith, L.||Perry of Southwark, B.|
|Donegall, M.||Rankeillour, L.|
|Dudley, E.||Rawlinson of Ewell, L.|
|Eden of Winton, L.||Reay, L.|
|Ellenborough, L.||Rees, L.|
|Elles, B.||Rennell, L.|
|Elliott of Morpeth, L.||Renton, L.|
|Elphinstone, L.||Renwick, L.|
|Elton, L.||Rippon of Hexham, L.|
|Ferrers, E.||Rodger of Earlsferry, L.|
|Finsberg, L.||Rodney, L.|
|Fraser of Carmyllie, L.||Romney, E.|
|Gainsborough, E.||Saint Albans, D.|
|Geddes, L.||Saltoun of Abernethy, Ly.|
|Gisborough, L.||Sanderson of Bowden, L.|
|Glenarthur, L.||Savile, L.|
|Goschen, V.||Seccombe, B.|
|Grantchester, L.||Simon of Glaisdale, L.|
|Greenway, L.||St. Davids, V.|
|Gridley, L.||Stanley of Alderley, L.|
|Haddington, E.||Stewartby, L.|
|Hailsham of Saint Marylebone, L.||Strafford, E.|
|Halsbury, E.||Strange, B.|
|Hanson, L.||Strathclyde, L.|
|Harmar-Nicholls, L.||Strathmore and Kinghorne, E.|
|Haslam, L.||Sudeley, L.|
|Hayhoe, L.||Swansea, L.|
|Henley, L.||Swinfen, L.|
|Hertford, M.||Swinton, E.|
|Holderness, L.||Taylor of Gosforth, L.|
|HolmPatrick, L.||Tenby, V.|
|Hood, V.||Thomas of Gwydir, L.|
|Hooper, B.||Thurlow, L.|
|Howe, E.||Tonypandy, V.|
|Jeffreys, L.||Torrington, V.|
|Johnston of Rockport, L.||Trumpington, B.|
|Kenyon, L.||Tugendhat, L.|
|Kinloss, Ly.||Ullswater, V. [Teller.]|
|Kintore, E.||Vivian, L.|
|Lauderdale, E.||Wade of Chorlton, L.|
|Lawrence, L.||Wakeham, L. [Lord Privy Seal]|
|Leigh, L.||Wharton, B.|
|Lloyd of Berwick, L.||Wilberforce, L.|
|Long, V.||Wise, L.|
|Lucas of Chilworth, L.||Wolfson, L.|
|Lucas, L.||Wright of Richmond, L.|
|Mackay of Ardbrecknish, L.||Wyatt of Weeford, L.|
|Mackay of Clashfern, L. [Lord||Wynford, L.|
|Macleod of Borve, B.||Zouche of Haryngworth, L.|
|Addington, L.||Annan, L.|
|Airedale, L.||Archer of Sandwell, L.|
|Alexander of Weedon, L.||Ardwick, L.|
|Ashley of Stoke, L.||Kilmarnock, L.|
|Bancroft, L.||Kirkhill, L.|
|Barnett, L.||Kirkwood, L.|
|Beaumont of Whitley, L.||Lester of Herne Hill, L.|
|Blackstone, B.||Lincoln, Bp.|
|Bonham-Carter, L.||Listowel, E.|
|Boston of Faversham, L.||Llewelyn-Davies of Hastoe, B.|
|Bottomley, L.||Lockwood, B.|
|Brooks of Tremorfa, L.||Longford, E.|
|Bruce of Donington, L.||Lovell-Davis, L.|
|Callaghan of Cardiff, L.||Mackie of Benshie, L.|
|Carmichael of Kelvingrove, L.||Mallalieu, B.|
|Carter, L.||Masham of Ilton, B.|
|Cledwyn of Penrhos, L.||McGregor of Durris, L.|
|Clinton-Davis, L.||McIntosh of Haringey, L.|
|Craig of Radley, L.||McNair, L.|
|David, B.||Merlyn-Rees, L.|
|Dean of Beswick, L.||Milner of Leeds, L.|
|Desai, L.||Mishcon, L.|
|Dilhorne, V.||Molloy, L.|
|Donaldson of Kingsbridge, L.||Monkswell, L|
|Donoughue, L.||Morris of Castle Morris, L.|
|Dormand of Easington, L.||Morton of Shuna, L.|
|Faithfull, B.||Nathan, L.|
|Falkender, B.||Nicol, B.|
|Falkland, V.||Ogmore, L.|
|Fisher of Rednal, B.||Peston, L.|
|Gallacher, L.||Peyton of Yeovil, L.|
|Geraint, L.||Pitt of Hampstead, L.|
|Gladwyn, L.||Prys-Davies, L.|
|Gould of Pottemewton, B.||Rea, L.|
|Graham of Edmonton, L.||Redesdale, L.|
|Granville of Eye, L.||Rochester, L.|
|Gregson, L.||Rodgers of Quarry Bank, L.|
|Grey, E.||Runciman of Doxford, V.|
|Hamwee, B.||Seear, B.|
|Haskel, L.||Sefton of Garston, L.|
|Healey, L.||Serota, B.|
|Henniker, L.||Shannon, E.|
|Hilton of Eggardon, B.||Shaughnessy, L.|
|Hollick, L.||Shepherd, L.|
|Hollis of Heigham, B.||Spens, L.|
|Holme of Cheltenham, L.||Stedman, B.|
|Hooson, L.||Stoddart of Swindon, L.|
|Howell, L.||Taylor of Gryfe, L.|
|Howie of Troon, L.||Thomson of Monifieth, L.|
|Hunt, L.||Tordoff, L.|
|Hylton-Foster, B.||Turner of Camden, B.|
|Irvine of Lairg, L.||White, B.|
|Jay of Paddington, B.||Wigoder, L.|
|Jay, L.||Williams of Elvel, L.|
|Jenkins of Putney, L.||Williams of Mostyn, L.|
|Kilbracken, L.||Windlesham, L|
On Question, amendment agreed to.
§ Resolved in the affirmative, and Clause 32 agreed to accordingly.
§ 7.6 p.m.
§ [Amendment No. 26 not moved.]
§ Clause 33 agreed to.
§ Lord Annaly
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.