Criminal Justice and Courts Bill
(9 years, 6 months ago)
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The Earl of Listowel
“Lifetime reporting restrictions in criminal proceedings involving children under 18
(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—
“45A Power to restrict reporting of criminal proceedings for lifetime of persons under 18
(1) This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence.
(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person’s name,(b) the person’s address,(c) the identity of any school or other educational establishment attended by the person,(d) the identity of any place of work of the person, and(e) any still or moving picture of the person.(5) In determining whether to make a reporting direction in respect of a person, the court must have regard to—
(a) the welfare of that person,(b) whether it would be in the interests of justice to make the direction, and(c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.(6) A reporting direction may be revoked by the court or an appellate court.
(7) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
(8) The court or an appellate court may only make an excepting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or(b) it is satisfied that—(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and (ii) it is in the public interest to remove or relax that restriction.(9) No excepting direction shall be given under subsection (8)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(10) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
(11) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently, and(b) may be varied or revoked by the court or an appellate court.(12) For the purposes of this section—
(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006.(13) In this section “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal.
(3) In section 49 (offences under Chapter 4)—
(a) after subsection (1) insert—“(1A) This section also applies—
(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court;”, and(b) at the end insert—“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”
(4) In section 50 (defences)—
(a) after subsection (6) insert—“(6A) Where—
(a) a person is charged with an offence under section 49, and(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and
(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”
The Earl of Listowel (CB)
The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.
Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.
Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.
So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.
However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Justice Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.
The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue on Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.
There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity; that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.
My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.
I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.
The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.
My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,
“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.
It cannot therefore be said to constitute an undue interference with open justice or press freedom.
We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.
I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.
The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?
To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I will speak only to Amendment 122AA standing in my name. This amendment deals with preserving the anonymity of children who are subject to a criminal investigation but who have not yet been charged with any offence. The lack of anonymity for such children is an anomaly in the law as they are protected from being named once they are charged, as the noble Earl, Lord Listowel, has just explained.
This anomaly was to be addressed by Section 44 of the Youth Justice and Criminal Evidence Act 1999, which would apply to reporting in respect of persons under 18 after a criminal investigation into an alleged offence has begun. However, that section has not been brought into force. My amendment would amend the section to add its application to sound and television broadcasts or public electronic communications networks and would bring it into force on the passing of the Bill.
The undesirability of the present position was graphically illustrated when the Sun published the name of the boy later to be accused of murdering the Leeds schoolteacher Ann Maguire before he was charged. It is, of course, now illegal to name him as he is a party to court proceedings. It is obvious that if a child is named pre-charge, that undermines any anonymity later afforded by court proceedings.
In Committee, my noble friend the Minister said that,
“in the light of the significant changes to press self-regulation recently introduced by the Government … Both the industry and the Government agree that independent self-regulation is the way forward. … We should therefore give this new approach a chance to succeed”.—[Official Report, 23/7/14; col. 1198.]
I regret that I do not share my noble friend’s optimism as to the present effectiveness of self-regulation. Furthermore, even if press self-regulation may work for newspapers in future, it has no effect on preventing pre-charge publication in the social media.
This is, of course, a probing amendment. It has been agreed that Section 44 will not in fact be brought into force unless it is debated by both Houses and subject to affirmative resolution. Nevertheless, I would ask my noble friend to make clear in this debate whether he agrees that pre-charge anonymity ought to be guaranteed—and, if so, will he please say how he proposes that it should be achieved?
Baroness Howe of Idlicote (CB)
My Lords, I will speak to Amendments 122A and 139. Amendment 122A and government Amendment 139 both aim to address the problem of what happens to the anonymity granted to children in court proceedings when these children turn 18. This is obviously a pressing issue thanks to the case of JC & RT, as we have already heard, in which Lord Justice Leveson ruled that Section 39 reporting restrictions expire when a child reaches 18. I gather that that case is subject to appeal.
The government amendment seeks to create a new lifelong anonymity order, but this cannot be granted to defendants: so these new orders allow a court to provide child victims and witnesses with anonymity post-18, but not child defendants. As far as I am aware, this means that the only way for a child defendant to be granted post-18 anonymity would be for them to seek a civil injunction. Unless they have such an injunction, the press, or individuals on social media, will automatically have the right to identify any child defendant as soon as they reach 18.
I understand that the Government’s position is that they do not want all child defendants automatically to be granted post-18 anonymity, but will there not be some cases in which the court should have the ability to impose lasting reporting restrictions? What about cases where a child is found not guilty of an offence? What about cases where vigilantism is a real possibility? Amendment 122A would allow defendants to be subject to the new lifelong anonymity orders and would provide courts with the means to impose restrictions if they choose. This may be the most sensible way forward.
Under Amendment 139, child victims and witnesses will have to show that their evidence or co-operation would be diminished if they were to be granted post-18 anonymity. Under the current law, victims and witnesses do not have to meet any tests to be granted the same anonymity. Like my noble friend Lord Listowel, I am concerned that this test may deter victims and witnesses. I am also concerned about what will happen when proceedings have already concluded and the child victim or witness has now reached 18 years of age. Presumably, anyone over the age of 18 who has ever been a child victim or witness and who does not want to be identified will have to go back to court and apply for one of the new orders that the Government propose. Surely it is unlikely that most people will know that they can do this. Even if they did, would legal aid be available to assist them?
This is a serious issue if victims and witnesses in historic cases start to be named in the press without their prior knowledge. This is likely to deter potential victims and witnesses from coming forward, as well as being potentially harmful to those identified. Like my noble friend Lord Listowel, I hope that the Government will take these concerns into consideration and, in particular, come back with a rather more acceptable amendment at Third Reading.
Lord Carlile of Berriew (LD)
My Lords, this has been a rather intimidating debate so far, in the sense that I notice that two of the three noble Lords who have spoken did so from their tablets. To the public mind, tablets in your Lordships’ House are probably seen to be what most of us take at some point during the day. Anybody who thinks that we are not a modern House should take account of what has just happened.
I support the speeches of all three noble Lords—in particular, that of the noble Earl, who opened cogently the debate on the amendment, which also has my name upon it. I am concerned that there should be a discretion vested in the court to allow anonymity for defendants. One could think of hundreds of examples where this would be just. I shall give the House one, which involves a situation in which parents have been instrumental in the child committing a crime. It may be the father who is a thief and has given the child the stolen goods to look after; or it may be a mother who is involved in some other offence in which she relies upon her child to protect her and, for example, warn her if the police are appearing.
For any of your Lordships are devotees of film noir, in a recent episode of that splendid drama, “The Bridge”, an animal rights terrorist involved his brother in a terrorist act and the brother undoubtedly committed criminal offences—we will have to wait and see whether he is prosecuted in the next episode—for his brother’s protection. It is self-evident that there will be cases such as the more real examples that I mentioned earlier, in which there should be a discretion in the court to protect the child from being named.
We are not saying in this amendment that it should happen. We are saying that surely it could happen. I hope that the Minister will tell me that I am wrong— I would be delighted if he did—and say that powers either exist or will shortly exist that will leave this discretion within the criminal court. There are, as the noble Earl said, civil powers that could be used, but these are complex and difficult to access, and we have the problem that legal aid is not necessarily available for such cases. We therefore need to ensure that children who have committed crime and may be only marginally to blame for their involvement have this protection.
We know that historically there are some cases of great notoriety in which, after the child’s release from custody, lifelong anonymity has been granted. It would be right to at least give the criminal court the power to grant such anonymity for a period, so that the notoriety of the child is protected, even if the merits indicate that this matter should be dealt with by a civil court at a much later stage.
I agree also with the noble Earl’s comments in relation to victims and witnesses. Child witnesses are often very intimidated by the prospect of giving evidence. They know that they are going to be cross-examined and face what may be an unpleasant experience. They will be told that the experience is sometimes well controlled, which is true—but unfortunately it is far from always well controlled. If we are to value the need to obtain child witnesses, particularly in abuse cases and matters of that kind, we should have stronger provision than is contained in the Bill. With those views, I support the amendment and the amendment spoken to by my noble friend Lord Marks, and hope that the Government will say that they would like to take another look at these provisions.
Baroness Hamwee (LD)
My Lords, the world now knows about the technology used by your Lordships and their Saturday night viewing habits. I associate myself with the remarks that have been made. I was not able to be in the House while the Bill was in Committee. However, I was a bit surprised that, rather than a quite simple but perhaps simplistic amendment which restored what everyone had thought of as the status quo, instead the amendment is around 10 lines in length. Those among your Lordships and from the Government who carried out the drafting have come up with very many lines, which can sometimes prove more difficult than a more straightforward and prescribed amendment.
Having said that, I want to mention the position of defendants. I agree very much with what has been said, and I simply add that not to provide anonymity or reporting restrictions—whatever term you apply, although of course they are not necessarily the same thing—seems to me to undermine the whole purpose of the youth justice system, which is rehabilitation, reintegration, and so on. An enormously important principle is at stake here. The same really applies to the amendment of my noble friend Lord Marks. One cannot separate out the stages. I am sure that there is a sporting analogy for this. Having lost anonymity at that early point before being charged, there is really nothing more that one can sensibly do afterwards to fulfil the spirit of what the Government themselves seem to consider important, even if we would like to have more than the Government’s amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my Amendment 123 is largely superfluous in the light of the government amendments. The Standing Committee for Youth Justice has sent to all noble Lords who have taken part in this debate, I suspect, a briefing which was largely laid out by the noble Earl. He made the point very well about the high threshold test proposed by the Government in their amendments. He summarised that by saying that the new threshold test would be a diminishment of co-operation or evidence through fear on behalf of the witnesses or the victims. The Standing Committee for Youth Justice briefing makes the point that this higher threshold is even higher than that in the Children and Young Persons Act. This is an important point, which I hope that the noble Lord will be able to address.
This is a very difficult area of legislation. In my brief time in the courts, although the law has not changed in the adult courts, in practice what magistrates view as appropriate use of media within a courtroom has changed quite a lot. This is largely at the discretion of the magistrates and district judges involved. I very much hope that the noble Lord will agree that whichever amendments are agreed tonight will be kept under review, because this is such a delicate and difficult matter.
Where I diverge from the noble Earl and the noble Lord, Lord Carlile, is whether lifetime anonymity should be given to child offenders. The briefing was rather less nuanced than the points made by the noble Lord, Lord Carlile. To put it in stark terms, I do not think it reasonable that a young person of 17 and a half should get a lifetime of anonymity, whereas someone who is 18 gets no anonymity if they have committed largely the same offence. If one were to rely on the briefing alone, that is the burden of the argument which is being made. I know that that is not the point made by the noble Lord, Lord Carlile; he presented his case in a more nuanced way. However, I find it troubling that there is potentially a very stark difference in the way that people are treated on either side of the 18 years of age barrier.
I would like to make a further point, which may be a technical one. I noticed that the briefing continually refers to child defendants and not to child offenders, whereas of course all the children about whom we are talking have either pleaded guilty or been found guilty in a court. They are not, in my understanding, child defendants. Having said all that, it is a real issue about the availability of the internet and how that might affect the rehabilitation and reintegration of young offenders into the community.
I conclude with an anecdote, which is not to do with youth. Recently, my wife employed a female offender who was still in prison but on release when she was employed by my wife. It was a wholly positive experience in that the offender worked well and the organisation benefited. However, when my wife searched the internet for the offences that the woman had committed, the information she got was not what she had been told by the offender or the organisation which facilitated the work placement. Nevertheless, I support the Government in their objectives.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am grateful to all those who contributed to this debate on these complex issues involving the conflict between a free press, the public’s right to know and the natural desire we have to protect young people from publicity to make sure that they do not suffer for life for any sins they committed in their youth. In acknowledging everyone’s contribution, perhaps I may single out the noble Lord, Lord Ponsonby, who I think, although I may be wrong, is making his debut from the Opposition Front Bench. Noble Lords are shaking their heads and I understand that he is not. Therefore, my congratulations are late but none the less sincere.
Amendment 139 provides the criminal courts with a discretionary power to order reporting restrictions that last for the lifetime of a victim or witness in criminal proceedings who is under the age of 18 at the time those proceedings commence. Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s from print and broadcast media to include online content as well. Amendment 139 tracks the circumstances in which a lifelong reporting restriction may be available to an adult witness. The criminal courts are therefore given an additional statutory discretion to order lifelong protection for victims and witnesses under the age of 18 to secure their best evidence or co-operation. However, if it is not reasonable or proportionate to make use of this power, the court may continue to rely on the existing youth reporting restrictions available to children and young people.
As these amendments have been tabled in response to the High Court judgment and the noble Lord, Lord Ponsonby, bringing it to our attention in Committee, consultation with the Scottish Government is ongoing and the government amendments are not intended to change the situation in Scotland. Some further technical amendments may be required at Third Reading in respect of territorial extent.
The issue of criminal investigations is covered by Amendment 122AA, which is tabled by my noble friend Lord Marks. This amendment seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999. It is similar to an amendment tabled by the noble Lord, Lord Ponsonby, in Committee. On previous occasions, I explained to your Lordships that, given the significant restriction that Section 44 potentially imposes on freedom of the press and the possibility that its aims might be achievable through other means, it was determined by the then Government in 1999 that Section 44 should be commenced in relation to victims and witnesses only after both Houses have been given the opportunity to debate the issue again.
I fear that I must repeat what I said in Committee. The Government do not believe that this is the right time to consider commencing Section 44 in light of the significant changes to independent press self-regulation that we have introduced. The Privy Council granted a royal charter that has been sealed. The Government believe that that is the best way to ensure that independent press self-regulation operates successfully and that we should give this new approach a chance to succeed. I am sorry that my noble friend Lord Marks does not have much confidence in this. Furthermore, we have some misgivings about Section 44 as drafted, as it imposes restrictions on the press that are so broad as to be potentially impractical.
However, I reassure my noble friend that it is unnecessary to amend Section 44 in order to extend it to online content as we believe that it already covers such media. Section 44 adopts a definition of “publication” that is wide enough to include online content. I will explain this further in dealing with the final set of government amendments and, in due course, I will ask the noble Lord to withdraw his amendment.
In respect of online content and youth reporting restrictions, Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s. Through these amendments, and by commencing Section 45 and the relevant parts of Section 48 of the YJCE Act 1999, restrictions will also be applicable to online content. The Government intend to commence the relevant provisions of the 1999 Act when the amendments to this Bill come into force.
Youth reporting restrictions will rely on an existing statutory definition of publication, which includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public, but does not include an indictment or other document prepared for use in particular legal proceedings. By using this definition of publication we will broaden the scope of youth reporting restrictions to create consistency with other reporting restrictions already on the statute book, such as those that apply to adult witnesses and victims of sexual offences. It would also be in line with the definition used in Section 2(1) of the Contempt of Court Act 1981 which the Law Commission recently concluded was,
“wide enough to cover the content of new media and probably in the future too”.
The Government agree with that interpretation and have therefore adopted the same definition of publication when extending the scope of youth reporting restrictions to online content. I hope that that reassures the noble Lord, Lord Ponsonby, that the purpose of his Amendment 123 has been met—and I would therefore ask him not to press it.
During the course of the debate there was some reference to whether there was any justification for the distinction between victims and witnesses and defendants. There are a number of statutory protections within the criminal justice system that are applicable only to victims and witnesses. One example is Section 46 of the YJCE Act 1999, which provides for the possibility of lifetime reporting restrictions for adult witnesses. The Sexual Offences (Amendment) Act provides for automatic reporting restrictions for victims of sexual offences. Similar statutory powers are not available for defendants.
I respectfully agree with what the noble Lord, Lord Ponsonby, said about the position of someone who is 17 and then becomes 18. He asked why there should be a difference so that if someone is 17 they have lifetime anonymity. Of course, there are remedies available. If your Lordships accept the Government’s amendments, it is argued that the current position reflects a fair balance between the various considerations that apply in this field. More clarity may be needed in this area of concern, which we will be considering.
I understand that Impress, the second potential self-regulator, is currently appointing its board. We would respectfully suggest that these are matters for the industry and not for government. I also understand that David Wolfe QC has been appointed chair of the independent Recognition Panel and that the board appointment process is also under way. This is a matter for the Commissioner for Public Appointments and not for government. Therefore, for the moment the Government have done all that they need to do.
The Earl of Listowel
My Lords, I am grateful to the Minister for his reply. I note the emphasis he puts on the charter and the institution that is set in place to improve the way in which the media control themselves. From what he said, I take it that he has an open mind to a certain extent. These are new developments. The charter is a new thing. He will keep looking at it to see if it provides sufficient protection for young people. I am grateful for that open-mindedness.
I was grateful for what the noble Lord, Lord Ponsonby, said. He referred to 17 and a half and 18 year-olds and that it seemed unfair to distinguish so much between the two when there was such a small gap. My response might be: can we not be generous to children? They are still children until the age of 18: can we not err on the side of generosity towards them? I am grateful to all noble Lords who have taken part in this debate and I beg leave to withdraw my amendment.
The Earl of Listowel
“Duties of custody officer before charge
In section 37(15) of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge), for “17” substitute “18”.”
The Earl of Listowel
My Lords, I hope that my iPad performs better on this occasion. My amendment would give 17 year-olds detained by the police the right to be held in local authority accommodation rather than overnight detention in a police cell. I tabled amendments to the same effect in Committee and during that debate I explained the importance of the matter. I was grateful for the sympathetic response from the Minister at the time and for his letter in July which laid out the timetable for the Government’s response to this question.
I will not repeat all the arguments other than to say that children under the age of 17 already have the right not to be detained in a police cell, but to be transferred to a local authority bed. Those aged 16 and under are already protected from being placed in police custody, an unsuitable and detrimental environment for the overnight detention of children. The recent tragic cases where teenagers have died after being treated as adults while at the police station remind us all too well of this fact. The UN Convention on the Rights of the Child is clear that 17 year-olds are children. However, the Police and Criminal Evidence Act 1984, known as PACE, which governs the operation of police stations, is currently inconsistent on this point. It is this Act which I am seeking to amend, specifically to enable 17 year-old children to access local authority accommodation.
In his reply in Committee, the Minister explained that the Government were holding an internal review of all the legislation where 17 year-olds are treated as adults in the criminal justice system. He explained that the review included looking at the necessary consequential amendments that would result from the proposed change in the law, and that the Government would need to ensure that such a change was workable. He concluded by saying:
“While this is clearly an important issue and one that the Government take extremely seriously, for the reasons I have given I am unable to commit myself to having an answer by Report. I hope that we will have, but I am afraid that I am unable to give that commitment”.—[Official Report, 23/7/14; col. 1205.]
I have tabled this amendment in the hope that the Minister might possibly be in a position to give the answer he hoped to have. I note from his letter in July that in fact the timetable he has set would give us a result in the spring of next year, but I hope that just possibly the Government have moved faster than he expected, because this needs to be addressed as soon as possible.
The charity Just for Kids Law has told me that it understands that the Home Office PACE strategy board, comprised of the police, civil servants and other relevant parties, has now met a number of times and that the last meeting of the board was held on 22 September. I am told that the charity has had sight of the minutes of that meeting and that civil servants have committed to submitting to Ministers an amendment to transfer 17 year-olds from police cells to local authority accommodation. As I say, I hope that the Minister might have some good news for us tonight. Is he in a position to confirm that this work has been done and, if so, can he tell the House that the Government are in agreement that this is the way to proceed now?
The Bill provides an ideal opportunity to amend PACE with regard to 17 year-olds as recommended by the internal review, and I hope that the Government will take it. I believe that there is a need to act with some urgency to ensure that there are no more teenage suicides as a consequence of their time in police custody. Since 2011 there has been one suicide a year where children were treated as adults at the police station. I am concerned that this issue should not be kicked into the long grass, as it has been in the past. In 2010 the Government committed to extending the appropriate adult provision to 17 year-olds, but it took seven years and a court decision before anything was done. In the interim, two children died after being treated as adults in police custody. The parents of Joseph Lawton, a successful and popular A-level student with no mental health problems, believe wholeheartedly that his suicide was the consequence of being kept in a police station overnight and their not being informed of what was happening. This simple amendment could prevent the death of another bright and successful child. The House should not forget the potential consequences of not amending the legislation. We owe it to the devastated parents who have campaigned on this issue and to all children. As parliamentarians, we have a duty to protect them and we should act as soon as possible.
Beyond children themselves, the people this change will impact on the most is the police. They support the change and have said this to the Home Office. I have also seen an e-mail on behalf of the national policing lead, Dawn Copley—who is also assistant chief constable of Greater Manchester Police, the area where all three 17 year-olds died—stating that,
“it is the National Policing position as held by Dawn Copley who is the national lead for Custody that PACE should be changed so that 17 year olds are treated as children in all the provisions of the Act”.
Given the importance of the issues at stake, with the police and bereaved parents stating that they are in agreement for change, and seeing the Government’s own independent review advising them the same, I hope that the Minister will indicate that the Government are able to support my amendment tonight. I beg to move.
Lord Ashton of Hyde (Con)
My Lords, I fully appreciate the laudable aims of this amendment, which seeks to make a positive change following the tragic cases of the three 17 year-olds who committed suicide following their encounters with the police. To lose a child is a tragedy, particularly in the sad circumstances surrounding the deaths of Joseph Lawton, Edward Thornber and Kesia Leatherbarrow. This Government have the utmost respect for the dedicated commitment of their families, who continue to campaign on this important issue.
The Government acted swiftly to ensure that they complied in full with the High Court decision in the judgment of Hughes Cousins-Chang. Changes were made as soon as possible following the statutory obligation to consult on PACE code changes. PACE codes C and H have been amended, and it is now mandatory that 17 year-olds have an appropriate adult with them at the police station and that the police inform a parent or guardian of their arrest and detention.
When this amendment was debated in the House on 23 July, noble Lords observed that the amendments to the PACE codes introduced inconsistencies between the Police and Criminal Evidence Act 1984—the primary legislation—and the PACE codes with respect to the treatment of 17 year-olds. On the one hand, they are treated as children and bestowed with the appropriate safeguards. However, when it comes to the location of their detention overnight post-charge, and their pre-court appearance, the noble Earl, Lord Listowel, and the noble Baronesses, Lady Kennedy and Lady Howe, made the point that the Police and Criminal Evidence Act continues to treat 17 year-olds as adults. They acknowledged that, while 17 year-olds may look like adults and sometimes act like adults, they are still children who find the environment of the police station to be frightening and threatening.
There are, of course, already in place important safeguards for all children under 18 who come into contact with the police. Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. This means that the police have to make arrangements to safeguard and promote the welfare of 17 year-olds detained post-charge overnight in the police station, and this is one way of ensuring that the best interests of those children can be upheld. Additionally, children under 18 have access to appropriate adults at the police station, who are with them throughout interviews and during procedures such as the taking of fingerprints and samples.
The Government are committed to ensuring that young people are protected and treated appropriately while in police custody. The noble Earl, Lord Listowel, spoke passionately in Committee on this matter, so I hope he will be pleased that, shortly after the High Court’s decision in the case of Hughes Cousins-Chang, the Government launched a review of the remaining pieces of primary legislation that treat 17 year-olds as adults. We expect the review to report shortly. As he mentioned, the working group responsible for reviewing the legislation reported to the PACE strategy board earlier this month.
The Home Office review was wider-reaching than the amendment. If it is indeed right to amend the Police and Criminal Evidence Act 1984 so that it treats 17 year-olds as children, then that principle should relate to all sections in the Act and not just the section that relates to overnight accommodation. Furthermore, any change to primary legislation needs full scrutiny, consultation and appropriate consideration by Parliament. This amendment is laudable in its aims but, in our opinion, represents a too-hurried and partial approach to the issue of how we treat young people at the age of 17 at the front end of the criminal justice system. There is more to be gained by pausing on this matter for the time being to enable the Home Office to consider the conclusions of its review. For these reasons, although I understand the reasoning behind the amendment, I respectfully ask the noble Earl to withdraw his amendment.
The Earl of Listowel
My Lords, I am grateful to the Minister for his careful response and for his recognition of the great distress that these sad events have caused the families in question. I was very pleased to hear that his department has undertaken to review these matters so that they can be changed as soon as possible.
I wonder if it might just be possible for him to go back and speak to his department to see if something could be done by Third Reading in this area, but I understand from what he said that this is unlikely. I appreciate that the Government are doing all they can as fast as they can to remedy this. I encourage them to work as hard as they can on this because I am sure that they, as much as any of us, wish to avoid these tragic events befalling any more children and families in the future. I am grateful to the Minister for his reply and I beg leave to withdraw my amendment.
Lord Faulks
“Time limit for bringing certain criminal proceedingsOffence of making improper use of public electronic communications network
(1) In section 127 of the Communications Act 2003 (improper use of public electronic communications network), at the end insert—
“(5) An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.(6) Summary proceedings for an offence under this section may be commenced in Scotland—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.”
(2) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”
Lord Marks of Henley-on-Thames
My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.
Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.
However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions, I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.
Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.
I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.
My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.
I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.
I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.
Lord Faulks
My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.
The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.
The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.
Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.
Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.
Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.
New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.
I stress, however, that this is a novel scheme and the Government have already agreed to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lord will agree that this further safeguard demonstrates the Government’s commitment to getting this right.
I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.
The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.
If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.
The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.
I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.
I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.
I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.
Finally, I suspect that when it comes to the review of the operation of this charge in three years’ time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.
Lord Hunt of Wirral
Lord Hunt of Wirral (Con)
My Lords, I am moved to move this amendment, inserting the words,
“which consists of or includes a claim”,
so that Clause 49 would read,
“proceedings on a claim which consists of or includes a claim for damages in respect of personal injury”,
because immediately after Committee, when we had a very good debate on what is now Clause 49, a number of people on all sides of the House expressed to me concern that quite often a claim for personal injury is accompanied by another claim, such as a claim for credit hire, that is often found to be bogus, made up, exaggerated or just plucked out of the air. Also, so far as whiplash injuries were concerned, a number of colleagues were concerned about the allegation that we had become the whiplash capital of the world, and wanted to create a deterrent to someone who had damaged their vehicle through a shunt or an accident, had recovered the repairs to their vehicle but then, as a result of a text message or some other marketing effort, decided to bring a claim for whiplash. It was put to me that thousands of such claims were being made that really were promoted by claims management companies without any substantial reason for the claim being made in the first place.
So I have tried here to extend the remit of the sanction for fundamental dishonesty to cover not only injury claims but claims presented where the injury itself is used as a means by which a dishonest claim—for example, a claim for credit hire—is made. I do this by aligning the wording in Clause 49 with that in, for example, Rule 44.13 of the Civil Procedure Rules 1998, which spells out the scope and intention of qualified one-way cost shifting. I hope that noble Lords will understand that I do not really need to repeat in detail the Civil Procedure Rules; suffice to say that I am aligning the amendment in accordance with that rule. Its wording is also aligned with Section 11 of the Limitation Act 1980. Again, for the record, I say that it is Section 11.
The amendment would capture vehicle repair costs paid before a dishonest injury claim was presented, but I believe that its greater impact would be in the arena of credit hire claims where genuine injury claims are frequently used as a means to present a dishonest, either fabricated or exaggerated, claim for hire. I could cite a whole series of relevant cases but I am not sure that noble Lords wish me to go into too much detail. There are a number of them where claims management companies, one in particular, presented 36 claims, 35 of which subsequently proved to be completely fabricated and, when challenged, were withdrawn. One claim was pursued but dismissed at first instance. As a result of that dismissal there was an appeal to the Court of Appeal, which said, “I think there should be a retrial”. The retrial began but, after evidence-in-chief, the claim was suddenly withdrawn so no claim for damages was maintained. Of course one can only speculate about why it was withdrawn. I refer to the case of Basharat Hussain v Adil Hussain v AVIVA UK Insurance Ltd, a reported case that is an example of exactly what I am hoping this amendment will stop—fabricated claims associated with an injury claim being made. I am sure that there would be all sorts of problems, but I hope that my noble friend will agree at least to give this a little further thought so that we can ensure that Section 49 is effective.
Lord Hope of Craighead (CB)
My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:
“The duty under subsection (2)”—
which is one to dismiss a primary claim—
“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.
It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.
Lord Marks of Henley-on-Thames
My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.
I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.
I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.
However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.
Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.
However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.
I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.
I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.
Lord Kennedy of Southwark (Lab)
My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.
Lord Beecham (Lab)
My Lords, I expect that other Members of your Lordships’ House will have had my experience of being called about accidents or insurance policies that I have never had, and I entirely sympathise with my noble friend’s last observations. Clearly, no one would wish dishonesty in the presentation of a claim to go without penalty. However, there are some questions to be asked about this provision. The first of those is, why should any change in the law, which we are now progressing, apply only to PI cases? The noble Lord, Lord Hunt, has broadened that somewhat, and is in a sense making my case for me, because he cited a case in which there is both an alleged personal injury and an accident. However, the driver who sues for a personal injury and is deemed to have been fundamentally dishonest will of course be penalised, and rightly so—although how the penalty is levied is perhaps debatable. However, if the claim is only for the damage to the vehicle, he will not be caught by the present clause, and nor, of course, would somebody fundamentally dishonest—whatever that means; that is perhaps another issue, but let us take it as a given at the moment—in a whole variety of other claims. Why should not somebody making a claim—for example, as regards breach of contract, professional negligence or any number of claims that have a monetary element in them for some breach of duty other than involving personal injury—also be brought within the framework? It seems odd to single out this group, albeit there clearly are cases where claims management companies and the like deliberately promote false claims.
Having listened to the noble Lord, Lord Marks, I am not entirely sure that this binary system of small claims and larger claims is appropriate. What might be a small claim to me and some other Members of your Lordships’ House is not necessarily a small claim to the individual claiming £25,000. One needs to have the same approach overall. However, there is then an issue about what constitutes substantial justice, and that is also unclear.
The major issue to which my amendment is addressed is why the courts should have to strike out a claim—an argument made, up to a point, by the noble Lord, Lord Marks—in its entirety on the balance of probabilities, as opposed to the criminal standard of proof. After all, we are talking about essentially criminal behaviour—it is essentially fraud. That is unsatisfactory, particularly if a claim is to be dismissed on that basis, hence my amendment. Of course, as I informed the House in Committee, in the case of Fairclough Homes v Summers in the Supreme Court, the noble and learned Lord, Lord Clarke, said:
“It is for the court, not for Parliament, to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”.
He said that the existing power to strike out should,
“only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances”.
One has to take that judgment into account in determining how to apply the test. I invite the Minister to reconsider whether the balance of probabilities is not a safer and better test to apply before further draconian action—which must in part be justified by fraudulent behaviour—is taken.
Lord Faulks
My Lords, I am most grateful to all those who have spoken in the debate. This is not, I readily concede, a straightforward provision. Our debates both in Committee and on Report have been illuminating. The stance taken by the noble Lord, Lord Beecham, tonight is somewhat different from that which he took in Committee—but I commend him on his mental agility in that regard. Of course, the fact that his arguments have somewhat changed—
Lord Faulks
The noble Lord’s arguments do not deserve lesser consideration for their recent arrival in our debate. He asked, for instance, why personal injuries, rather than other fields, should be singled out for attention. The answer is simply this. Of course fraud has a role in the law of contract, the law of property and other areas of the law. But this is a provision to deal with a particular mischief, of which we are all aware in one form or another. Unfortunately, the explosion of claims, with dishonest claims and people calling others to invite them to participate in dishonest claims, has become widespread, and the Government are responding in a variety of different ways, including by regulating claims management companies—I am glad to see the reduction in the number of such companies—and by introducing this provision.
Amendment 128 was tabled by my noble friend Lord Hunt of Wirral, to whom the House listens very carefully on all things, but perhaps particularly in areas such as this. It would extend the scope of Clause 49 to cover claims for items linked to the personal injury claim. As he has indicated, this could typically include items such as damage to property and the cost of credit hire. The effect of the amendment would be that where the court was satisfied that the claimant had been fundamentally dishonest, its order would dismiss any such related elements, as well as the claim for personal injury—when, for example, a claim for personal injury is used as a vehicle for other fraud.
I understand precisely what my noble friend says, and I have considerable sympathy for what lies behind the amendment, which is to make the clause as strong a deterrent as possible. However, after careful consideration by my officials and myself, I believe, on balance, that it would unnecessarily complicate the clause, and could have unintended consequences that would not be desirable.
The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the claimant’s insurer, and are then recovered by them from the defendant’s insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the claimant’s insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.
The complexity of the law on subrogated rights means that the potential for this type of unintended consequence would be high. In any event, I do not consider the amendment necessary. The existing focus of the clause on personal injury claims avoids complexities of this nature, and ensures that the core matter in relation to which the claimant has actually been dishonest, and where the main scope for dishonest behaviour arises—the personal injury claim—will be dismissed whenever the court considers it appropriate. We are confident that this should provide a sufficiently powerful deterrent to discourage claimants from seeking to bring fraudulent and exaggerated claims, and believe that the amendment could on balance run the risk of creating uncertainty in the law and would make the clause unnecessarily complex in practice.
On Amendment 128A, the noble Lord, Lord Beecham, said that it would be more appropriate to have not the civil standard of proof but the criminal standard of proof. I think that he refers—if not explicitly, implicitly—to a recommendation of the Joint Committee on Human Rights on this, which based its recommendation on the view that the inclusion of the relevant measure is indicative of the quasi-criminal nature of the sanction imposed by the dismissal of the claim. The Government strongly disagree that that is the case. Subsection (7) simply ensures that the order for dismissal can be taken into account by a court hearing any proceedings against the claimant in relation to the same dishonest behaviour, whether they be civil or criminal proceedings for contempt or a criminal prosecution. This is to ensure that the claimant is dealt with fairly and that any punishment imposed in those proceedings is proportionate given the overall effect of the consequences of the claimant’s dishonest behaviour upon him or her. This approach is also reflected in other aspects of the clause—in particular, subsection (5) in relation to costs sanctions.
As we have set out in the ECHR memorandum accompanying the Bill, we consider that the adoption of a civil standard of proof can be fully justified. The sanction of deprivation of property involved in the dismissal of the claim would occur in the context of civil proceedings in relation to civil compensation, proceedings which are brought by the claimant, not the state. No criminal conviction could arise from the dismissal process itself, and it does not involve anything that could be said to be a criminal charge. We consider that the analogy drawn in the ECHR memorandum with the approach of the European Court of Human Rights and the domestic courts to confiscation proceedings under the Proceeds of Crime Act 2002, in which a civil standard of proof has been upheld, is a valid one, and that the adoption of the civil standard of proof in Clause 49 is both fair and appropriate.
Amendments 128B, 128C, 128D, 128E, 130A and 130B tabled by my noble friend Lord Marks are similar but not identical to those tabled by him in Committee, save that the court is given a discretion to reduce the award of damages rather than dismiss the claim entirely, or, it would seem, take no action at all, in circumstances where the genuine part of the award is £25,000 or more. We do not believe that it is appropriate to impose a financial limit of this nature. I endorse what the noble Lord, Lord Beecham, said about this. Although the widening of the court’s discretion not to dismiss the claim is of a lesser extent to that which the noble Lord previously suggested, the amendments would still weaken the effect of the clause and interfere with its effective operation by imposing what is inevitably an arbitrary dividing line.
As I explained in Committee, the sanction imposed by this clause—the denial of compensation—is a serious one, and will be imposed only where the claimant’s dishonest behaviour goes to the heart of the claim. If the court, having heard all the evidence, is satisfied that that is the case, I believe that it is right that it should be required to dismiss the entire claim unless doing so would cause substantial injustice to the claimant. People who behave in such a way should not be able to get compensation regardless, whatever the amount involved.
The amount of compensation which the claimant would otherwise have been awarded, and the proportion of the overall claim which that represents, will, of course, be matters that the court may wish to take into consideration in deciding whether the claimant has been fundamentally dishonest and, if so, whether its discretion not to dismiss the claim should be exercised. Where the effect on the claimant might be particularly harsh or unfair on the facts of the case, the substantial injustice test will provide sufficient protection. The addition of a further discretion simply waters down the deterrent effect of this provision.
On Amendment 129, during the debate in Committee some uncertainty was expressed about the policy intention underlying subsection (5) of Clause 49, and whether the existing drafting of the subsection clearly and accurately captured that intention. In the light of those concerns, we have tabled government Amendment 129, which clarifies the position by replacing the existing subsection with a new subsection. This provides that when assessing costs in the proceedings, a court which dismisses a claim because of the claimant’s fundamental dishonesty must deduct the amount of damages that it would have awarded to the claimant from the amount of costs which it would otherwise order the claimant to pay in respect of the defendant’s costs. The intention underlying this provision is, as I have previously explained, to ensure that claimants are not excessively sanctioned by both losing the genuine element of the award of damages and having to pay the defendant’s costs without any credit for what the defendant has saved by avoiding payment of the genuine element of the award. I should add that one of the main intentions behind this provision is to deter people from bringing these claims at all, or at least deter them from being dishonest when advancing them.
Beyond that, it is not our intention to interfere more generally with the court’s discretion on whether to make a costs order and, if so, in what terms. We believe that the court should be able to make whatever orders it considers appropriate. In many cases the court will doubtless decide to award the defendant’s costs in full, apart from the sum deducted under this subsection. However, in some cases, it may decide only to award the defendant some of its costs in circumstances where it considers that certain costs have been unnecessarily incurred—for example, where the defendant had spent money pursuing an irrelevant issue.
Amendment 129 preserves the court’s discretion to do this, or indeed to decide, in the circumstances of a particular case, to make no award of costs at all. We believe that it is important for a provision on this issue to remain in the clause to ensure that it operates in a fair and proportionate way, and I am therefore—although I do not think my noble friend is pursuing it with any vigour—unable to accept Amendment 128F, which would remove it altogether.
My noble friend Lord Hunt has indicated that he remains concerned that Amendment 129, the government amendment, may still create some confusion, and has proposed Amendment 130 instead. While I share my noble friend’s concern to ensure that the provision is as clear as possible, on careful consideration, we do not believe that his fears about our amendment are justified.
In particular, I should point out that, even if the actual assessment of the amount of costs payable is undertaken by a different judge or officer at a later date, as would normally be the case in a detailed assessment of costs, assessment is still being undertaken by the same court that has dismissed the claim, and so the requirement to deduct the amount recorded in subsection (4) from the ultimate costs “bill” that the claimant may have to pay applies regardless of the point of time at which, or judge by which, the costs payable are determined. I am also concerned that my noble friend’s amendment simply restates the existing law confirming the discretion of the court to award costs. On balance, we feel that it is unnecessary to restate this in legislation, and it might be taken to imply that this was not already the position, or that special rules regarding the court’s discretion as to costs are required in these cases. That would be contrary to the policy, which is not intended to make any changes to the rules on costs themselves.
On reflection, I consider that government Amendment 129 makes it amply clear that if the court decides to order costs against the claimant, it must deduct the amount of the damages it would have awarded but for the effect of Clause 49, so that the claimant has to pay whatever costs, if any, that are ordered net of that amount. I believe that the Government’s amendment clarifies this policy intention in a way that removes any ambiguity that might have arisen from the previous text of the subsection. However, I remain extremely grateful to my noble friend for drawing that to the attention of the House. I am sorry that I detained the House a little longer than might be desirable at this time but these are complex provisions, and it may be helpful if I provide a little detail about this.
I conclude by dealing with the question of where parts of a claim may be involved. The noble and learned Lord, Lord Hope, pointed out a possible ambiguity. It may be that this is what he has in mind. I shall answer the question: why does the court have a discretion not to dismiss the claim when the claimant would suffer a substantial injustice? We believe that an element of discretion is necessary because difficult cases may arise where depriving the claimant entirely of damages may cause substantial injustice. This might be the case, for example, where a claimant had genuinely been very seriously injured through another person’s negligence, perhaps requiring substantial ongoing future care and support as a result, but stupidly colluded in a bogus minor injury claim by a family member in relation to the same accident. We do not, however, think there is any need to amend the provisions. We think that judges will be able to work with these provisions and that the Government’s intention and, I hope, that of noble Lords from all around the House, will be achieved by these important provisions. I hope that all noble Lords who have tabled amendments will agree to withdraw or not move them.
Lord Hunt of Wirral
My Lords, I first remind the House of my interests as declared in the register. Secondly, I thank my noble friend the Minister for his very careful consideration of all the points which have been raised, and for his recognition that these are genuine attempts to eradicate a practice which has arisen and which must be stopped. I will of course very carefully consider all the points he has made, and in the mean time I beg leave to withdraw my amendment.
Lord Faulks
“( ) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.”
Lord Faulks
Lord Faulks
My Lords, I am grateful once again to my noble friend Lord Hunt of Wirral for raising this issue in Committee. During that debate, I indicated that we would consider his amendment further. There has been widespread support for the ban on offering inducements to bring personal injury claims in Clauses 50 to 52, but I am concerned to make this as effective as possible. Having reflected over the summer—I have been given a great deal on which to reflect over the course of the Bill—I agree with my noble friend that we should seek to prevent regulated persons avoiding the ban by offering an inducement through third parties.
The noble Lord’s amendment was prompted by a concern that it is now increasingly common for solicitors to operate as part of larger groups of companies, or to have subsidiary or linked companies offering services alongside them. Those subsidiary or linked companies are not always regulated, and it would be relatively easy for, say, a solicitor simply to route an inducement through an unregulated company, thus avoiding the ban.
For the avoidance of doubt, I add that we do not wish to regulate third parties, only to prevent regulated persons from avoiding the ban by offering an inducement via an unregulated subsidiary or a linked business or individual. I believe that this amendment is a proportionate means of making the necessary ban on inducements more effective, and I beg to move.
Lord Beecham
I am afraid I cannot beat the brevity of that. I would like a little guidance from the Minister about the nature of the regulation. Can he give any indication of how effective whatever the regulatory body is—I confess that I do not know which it is—in overseeing this practice? I am entirely with the Government in wishing to ensure that such practices are limited as much as possible, for precisely the reasons that were mentioned by the noble Lord, Lord Hunt, and with which we all concur: the promulgation of false claims, which is wrong in itself and, of course, a drain on the economy generally. I am not clear what the regulatory system currently is, or how effective it is. While supporting the Government’s intentions in the amendment, it would be helpful to have an impression of that.
Lord Faulks
I am happy to write to the noble Lord with as much detail as we have. In the mean time, I can tell him and the House that anecdotal evidence shows that the practice is more prevalent among solicitors than non-regulated persons. However, once there is a ban in place preventing legal services providers from offering an incentive to issue claims, there is a possibility that non-regulated persons offering inducements to issue claims with legal services providers will be used as a way around the ban.
As to what types of third party rather than regulated persons might offer a benefit, these are likely to be but not restricted to those working in what are described as “first notification of loss teams”. The teams are used by insurers and are the central point that clients contact when they wish to make a claim on their insurance policy. The intention is to ban any inducement which encourages or might have the effect of encouraging a person to make a claim or seek advice about making a claim, including so-called welcome payments, free gifts and cash advances.
The noble Lord will know that there is far too much by way of unsolicited phone calls going on in relation to personal injury claims, which is another matter we take seriously. It is a complex issue that requires action on a number of fronts, both legislative and non-legislative. We have taken a number of measures as set out in our nuisance calls action plan of 30 March. I can give the website address if necessary. It includes increasing the fines that Ofcom can issue from £50,000 to £2 million, enabling the Information Commissioner’s Office to issue fines of up to £500,000, and providing simple and consistent information to consumers on preventive action that they can take and how they can complain about unsolicited phone calls via Ofcom.
If the noble Lord is having particular difficulty with being asked to make fraudulent claims, which I am sure we have all encountered, he may wish to know that he can register with the Telephone Preference Service, which should result in his avoiding such claims. I hope that that provides some further information, but I undertake to give more information in due course.
Lord Beecham
I thank the noble Lord for providing further information, but it is not terribly helpful because the Telephone Preference Service seems to be totally useless. Apart from anything else, it does not seem to work with a BlackBerry these days. It is quite extraordinary. Having appreciated that regulated persons include members of my profession and that of the noble Lord, Lord Hunt, I am sure that he will agree that it is a very sad commentary on the current state of what was a profession and is now increasingly descending, if I may put it that way, into a rather unscrupulous business —which is a matter I think we would both deplore.
Lord Faulks
“(3A) If a person other than a regulated person offers a benefit in accordance with arrangements made by or on behalf of a regulated person—
(a) the regulated person is to be treated as offering the benefit, and(b) the offer of the benefit is to be treated as satisfying subsection (2)(a) if the arrangements were intended to encourage people to make claims or seek advice from a regulated person with a view to making a claim.”
Lord Faulks
Lord Faulks
Lord Faulks
“Appeals from the Court of Protection
(1) Section 53 of the Mental Capacity Act 2005 (rights of appeal from the Court of Protection) is amended as follows.
(2) For subsection (2) substitute—
“(2) Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.”
(3) Omit subsection (3).
(4) In subsection (4)(d), omit “higher”.”
Lord Faulks
My Lords, I shall speak to three amendments tabled in my name on behalf of the Government. We have the pleasure of the noble and learned Lord, Lord Hope, in the Chamber in respect of these amendments and I thank him for his patience for remaining for so long. Amendments 138 and 181 seek to rectify an omission in relation to appeals from decisions at lower levels in the Court of Protection, which was not addressed when the range of judicial officeholders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013.
The need for the amendment does not only arise from, but has been starkly highlighted by, the decision of the Supreme Court in what has become known as the Cheshire West case. That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required for such a deprivation of liberty.
As a result, it is predicted that there will be a significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty in cases where, prior to Cheshire West, no such authorisation was considered necessary. It is considered that the figure may well be in excess of 28,000 additional applications annually. To deal with this increase in workload, deputy district judges and judges from other jurisdictions are being deployed to the Court of Protection for the first time. The Crime and Courts Act 2013 allowed for this wider range of judges to deal with Court of Protection cases but did not address the question of appeals.
The current provision in the Mental Capacity Act 2005 governing the route of appeal from decisions in the Court of Protection allows for decisions of specified judges to lie to a higher judge in the Court of Protection rather than directly to the Court of Appeal. However, the judges specified are limited to district judges and circuit judges, and the provision does not cover decisions of any of the wider range of judicial officeholders now able to sit as judges of the Court of Protection. The Crime and Courts Act omitted to amend it to align with that wider range. Without this amendment, appeals from decisions of judges in that wider range—even though they are decisions of the same sort as those of a district judge at present, for example—would have to go to the Court of Appeal, thereby increasing workload in the appeal court. This amendment makes good the omission.
The judges whose decisions may be appealed within the Court of Protection and the higher judges to whom appeal against those decisions will lie within the Court of Protection will, as now, be specified in Rules of Court, namely the Court of Protection Rules. This will prevent the Court of Appeal being unnecessarily burdened by a significant increase in cases and allow the Court of Protection the flexibility to deal with resources efficiently. This, in turn, will reduce delays and the need for cases to be transferred to a different court. It will also provide greater consistency in how appeals are managed across other jurisdictions.
Members of the House of Lords Select Committee on the Mental Capacity Act 2005—I should declare an interest as having been a member of that committee for some time—were given written notice of this proposed amendment which was made available in early August to allow time for consideration.
Amendment 142 would have the effect of allowing the President of the Supreme Court of the United Kingdom to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom can do already under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales. This amendment would give the President of the Supreme Court the same avenue to raise similar matters to Parliament. The proposed amendments were initially tabled by the noble and learned Lord, Lord Hope of Craighead, and I am grateful to him for bringing this matter to our attention. The Government have considered and reflected further on the implications of this proposal and agree that the change is justified,
Amendment 143 was also tabled in Committee by the noble Lord. This amendment would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the Supplementary Panel within two years of their retirement, provided that they are under the age of 75. At present, it is impossible for the Supreme Court to identify particular skills or expertise which might be of use in the future—particularly without knowledge of future workloads. This makes it difficult to identify which qualifying judges should be added to the Supplementary Panel before they retire from full-time judicial office. The amendment provides greater flexibility in this respect.
These are minor but sensible amendments which I hope the House will agree to. I beg to move.
Lord Hardie (CB)
My Lords, I apologise for speaking at this late hour and detaining your Lordships but Amendment 138 is important for the application of the safeguards in the Mental Capacity Act against depriving people of their liberty without justification and for the need to provide proper judicial supervision of such actions. I declare an interest in that I was chairman of the Select Committee on the post-legislative scrutiny of the Act.
The consequence of the need to ensure that these safeguards are in place is that there should be adequate resources to decide cases at first instance and on appeal within the Court of Protection. These cases should be decided by the appropriate level of judges. I am grateful to the Minister for explaining the reasoning behind this amendment. I understand that the decision in the Cheshire West case, in which the Supreme Court concluded that each of the three appellants who had mental or physical disabilities or had suffered deprivation of their liberty within the meaning of Section 64(5) of the Mental Capacity Act 2005, had the effect of increasing the workload of the system.
I should advise the House that I have been told that the number of cases involving an alleged deprivation of liberty referred to local authorities for assessment, which is the first stage, has increased dramatically. There has been a ninefold increase in monthly referrals. The total number since April this year is almost 33,000, compared with 8,455 for the whole of 2012-13. This will not come as a surprise to the members of the Select Committee on post-legislative scrutiny of the Act, which I had the honour to chair and of which the Minister was a distinguished member before his justifiable appointment to ministerial office.
Our report predated the decision in Cheshire West by, I think, about a week. We heard evidence over a number of months suggesting that the then available figures did not accurately reflect the number of people who were actually subject to deprivation of liberty. Perhaps I may quote from paragraph 270 of the report, where we record our conclusion on that evidence:
“We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge”.
Against that background, it is not surprising that the Government are anxious to take a more flexible approach to appeals, but it is equally important that these appeals are held by judges of higher authority than first-instance judges. The existing provisions in the Act have a hierarchy where the first-instance judges are set out as people who are drafted in—district court judges or circuit judges—and there is a hierarchy of appeals. From those who are drafted in, there is a right of appeal to the district court judge or the circuit judge. From the district court judge there is a right of appeal to the circuit judge, and from any of the three of them there is an appeal to the senior judges who are nominated to serve in the Court of Appeal.
In Scotland, England and Wales appeals are generally heard by an appeal court that is comprised of more than one judge, but there are exceptions where appeals may be heard by a single judge. In Scotland, for example, one might appeal against a decision of a sheriff to the sheriff principal. We have seen that in England and Wales there is the possibility of an appeal to a single judge in the Court of Protection. But where it is an appeal to a single judge, it is always an appeal to a single judge of a higher status and legal authority. That is preserved in the original provision, but in the amendment being proposed no reference is made to it. I appreciate that the likelihood is that the rules council would not permit an appeal to someone of equal or lower status, but I am concerned that it should be put on the record that that would not happen, because otherwise there might be a suggestion to the more vulnerable members of society that their appeals were not being treated with equal concern and consideration as those of the more able.
Lord Hope of Craighead
My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.
I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.
Lord Faulks
I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.
Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.
Lord Faulks
“Reporting restrictionsLifetime reporting restrictions in criminal proceedings for witnesses and victims under 18
(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—
“45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18
(1) This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—
(a) a witness, other than an accused, in the proceedings;(b) a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person’s name,(b) the person’s address,(c) the identity of any school or other educational establishment attended by the person,(d) the identity of any place of work of the person, and(e) any still or moving picture of the person.(5) The court may make a reporting direction in respect of a person only if it is satisfied that—
(a) the quality of any evidence given by the person, or(b) the level of co-operation given by the person to any party to the proceedings in connection with that party’s preparation of its case,is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.(6) In determining whether subsection (5) is satisfied, the court must in particular take into account—
(a) the nature and alleged circumstances of the offence to which the proceedings relate;(b) the age of the person;(c) such of the following as appear to the court to be relevant—(i) the social and cultural background and ethnic origins of the person,(ii) the domestic, educational and employment circumstances of the person, and(iii) any religious beliefs or political opinions of the person;(d) any behaviour towards the person on the part of—(i) an accused,(ii) members of the family or associates of an accused, or(iii) any other person who is likely to be an accused or a witness in the proceedings.(7) In determining that question the court must in addition consider any views expressed—
(a) by the person in respect of whom the reporting restriction may be made, and(b) where that person is under the age of 16, by an appropriate person other than an accused.(8) In determining whether to make a reporting direction in respect of a person, the court must have regard to—
(a) the welfare of that person,(b) whether it would be in the interests of justice to make the direction, and (c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.(9) A reporting direction may be revoked by the court or an appellate court.
(10) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
(11) The court or an appellate court may only make an excepting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or(b) it is satisfied that—(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(ii) it is in the public interest to remove or relax that restriction.(12) No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(13) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
(14) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently, and(b) may be varied or revoked by the court or an appellate court.(15) For the purposes of this section—
(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006. (16) In this section—
(a) “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;(b) “appropriate person” has the same meaning as in section 50;(c) references to the quality of evidence given by a person are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a person’s ability in giving evidence to give answers which address the questions put to the person and can be understood both individually and collectively);(d) references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.”(3) In section 49 (offences under Chapter 4)—
(a) after subsection (1) insert—“(1A) This section also applies—
(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court.”, and(b) at the end insert—“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”
(4) In section 50 (defences)—
(a) after subsection (6) insert—“(6A) Where—
(a) a person is charged with an offence under section 49, and(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and
(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”
“Reporting restrictions in proceedings other than criminal proceedings
(1) Section 39 of the Children and Young Persons Act 1933 (power to prohibit publication of certain matter in newspapers) is amended as follows.
(2) In subsection (1)—
(a) after “any proceedings” insert “, other than criminal proceedings,”, and(b) after “direct that” insert “the following may not be included in a publication”.(3) In subsection (1)(a)—
(a) omit “no newspaper report of the proceedings shall reveal”, and(b) omit “, or include any particulars calculated to lead to the identification,”.(4) In subsection (1), after paragraph (a) insert—
“(aa) any particulars calculated to lead to the identification of a child or young person so concerned in the proceedings;”.(5) In subsection (1)(b)—
(a) for “no picture shall be published in any newspaper as being or including” substitute “a picture that is or includes”, and(b) omit “as aforesaid”.(6) In subsection (2), for “publishes any matter” substitute “includes matter in a publication”.
(7) After subsection (2) insert—
“(3) In this section—
“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include a document prepared for use in particular legal proceedings;
“relevant programme” means a programme included in a programme service within the meaning of the Broadcasting Act 1990.”
(8) In the heading of that section, omit “in newspapers”.
(9) After that section insert—
“39A Prohibition on publication of certain matters: providers of information society services
Schedule 1A makes special provision in connection with the operation of section 39 in relation to persons providing information society services.” (10) In section 57(3) of the Children and Young Persons Act 1963 (extending section 39 of the Children and Young Persons Act 1933 to Scotland) after paragraph (a) (but before “and”) insert—
“(aa) as it extends to Scotland, the said section 39 has effect as if the references to a publication were references to a newspaper;”.(11) In consequence of the amendment made by subsection (2)(a), omit paragraph 2 of Schedule 2 to the Youth Justice and Criminal Evidence Act 1999.
(12) Subsection (2)(a) does not affect the operation of section 39 of the Children and Young Persons Act 1933 in relation to criminal proceedings instituted before the day on which it comes into force.
(13) For the purposes of subsection (12)—
(a) proceedings other than proceedings on appeal are instituted when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings on appeal are instituted when the notice of appeal is given or the reference under section 9 or 11 of the Criminal Appeal Act 1995 is made.”
“Reporting restrictions: information society services
Schedule (Reporting restrictions: providers of information society services) makes special provision in connection with the operation of the following in relation to persons providing information society services—(a) section 39 of the Children and Young Persons Act 1933;(b) section 49 of the Youth Justice and Criminal Evidence Act 1999 as it applies to a publication that includes matter in contravention of a direction under section 45A(2) of that Act.”
“Representations to Parliament by the President of the Supreme Court
(1) Section 5 of the Constitutional Reform Act 2005 (representations to Parliament) is amended as follows.
(2) At the beginning insert—
“(A1) The President of the Supreme Court may lay before Parliament written representations on matters that appear to the President to be matters of importance relating to the Supreme Court or to the jurisdiction it exercises.”
(3) In subsections (2) and (3), for “those matters” substitute “the matters mentioned in subsections (A1) and (1)”.”
“The supplementary panel of the Supreme Court
In section 39(4) of the Constitutional Reform Act 2005 (circumstances in which a judge of the Supreme Court becomes a member of the supplementary panel), after “while he holds such office” insert “or within 2 years of ceasing to hold such office”.”
Baroness Howe of Idlicote
“Giving evidence at remote sites
In the Youth Justice and Criminal Evidence Act 1999, after section 30 (aids to communcation) insert—“30A Giving evidence at remote sites
(1) A special measures direction may provide for persons eligible for assistance under section 16 (witness eligible for assistance on grounds of age or incapacity) to give evidence at a remote site.
(2) For the purposes of this section, any facility may be designated as a remote site where the court is satisfied that all of the following criteria have been met—
(a) the facility must be suitable for hearing evidence;(b) the facility must be absent from the court building;(c) the location of the facility must be appropriate to meet the needs and promote the welfare of the witness; and(d) the arrangement must not prevent the witness from being able to see, and to be seen by—(i) the judge or justices (or both) and the jury (if there is one);(ii) legal representatives acting in the proceedings; and(iii) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.””
Baroness Howe of Idlicote
My Lords, I will speak to Amendments 144 and 145 together, as they both concern the use and availability of special measures for child victims and witnesses during a criminal trial. The amendments relate specifically to remote live link sites, which allow children to give their evidence away from a court building and with registered intermediaries —communication professionals who help children communicate with the police, legal representatives and the court.
These new clauses are supported by the NSPCC, Barnardo’s and Victim Support. I am sure that noble Lords will agree with me that never before has such a stark spotlight been shone on child abuse, with increasing numbers of victims coming forward and arrests made. It is clearly important that we should be doing everything in our power to support child victims and witnesses to give their best evidence and minimise the trauma of their court experience. NSPCC research found that more than half of young witnesses experienced stress symptoms ranging from sleeping and eating problems, to depression, bed-wetting and self-harming. A child’s evidence can be crucial in deciding the outcome of a case. Where this involves sexual abuse, they are often the only witnesses. However, the current special measures designed to support children in these circumstances are being used too inconsistently.
The purpose of these new clauses is to highlight the urgent need to increase their use and availability. The new clause proposed in Amendment 144 requires the availability of a remote videolink site away from court for all young witnesses. I share the view of the NSPCC that a criminal court is not an appropriate place for a child and that no child should give evidence in a court building unless they expressly wish to do so. The hostility, unfamiliarity and alien nature of the court and the proximity of the defendants and their supporters all serve to make a child’s experience far more traumatic. This can increase the likelihood of a child failing to give their best evidence and justice not being served. Indeed, in some cases children are so upset by their time in court that they are unable to give their evidence at all.
It is now 25 years since the landmark Pigot report recommended that children should give evidence in surroundings and circumstances that do not intimidate or overawe them, and yet a recent FOI request by the NSPCC showed that there are currently only a handful of remote sites across England and Wales where children can give evidence by videolink away from court. Judge Pigot’s recommendations were made in 1989, well before the dawn of the digital age. It does not seem right that in 2014, when people are able to make video calls to the other side of the world in a matter of seconds and prisoners routinely give evidence from their cells, that still only 1% of children have the option of giving evidence away from a court building. Establishing a remote link is not prohibitively complex and can cost as little as £10,000 to £12,000.
I welcome the Government’s recent commitment to ensuring that there is one remote site in each court region by March 2015. That is a welcome step in the right direction but there are only six court regions across England and Wales. This commitment is nowhere near the level of ambition we should expect for our most vulnerable victims. My amendment would ensure that remote sites are available to all children who require one. I would welcome clarity on the Government’s commitment to remote sites beyond establishing one in each court region.
In their recent package of measures for victims, the Government announced the rollout of pre-recorded evidence. This will undoubtedly make a huge difference to vulnerable children, reducing the delay and trauma involved in giving evidence during a live trial, but will the Minister give his assurance that children will be able to pre-record their evidence at a location away from a court building? I see no reason why remote sites should not be routinely used for this purpose, but this will require a concerted effort to increase their number.
The new clause proposed in Amendment 145 requires the availability of registered intermediaries for all children under 11 years of age—another valuable special measure which child witnesses are eligible for but which is used far too infrequently. Even bright, normally developing children find court communication methods and language challenging simply because of their age. Research has shown that 90% of children under the age of 10 reported being unable to understand the questions they were asked in court.
An intermediary is an officer of the court who facilitates communication between vulnerable witnesses and the criminal justice system. Unfortunately, just 3.8% of young witnesses in England and Wales have access to a registered intermediary to help them understand what is happening during a trial. This stems from a stark shortage in numbers and a low awareness of the benefits of the service within the criminal justice system. Judges widely agree that RIs provide enormous value to the handling of cases involving young witnesses. Yet, astonishingly, there are fewer than 75 in England and Wales to support the 21,000 children giving evidence each year. Even after accounting for a recent recruitment drive by the Ministry of Justice, we are still a very long way from a sustainable service which addresses the level of need.
Lord Hope of Craighead
My Lords, I want to make one or two points about Amendment 145, based upon my experience as a prosecutor taking evidence from very young children. One has to bear in mind that not every case in which a child is giving evidence is a case of child abuse. Some of them may be cases such as theft or something of that kind where the child is an essential witness but in no sense has been traumatised by the event about which they are speaking. One has to be a little careful about spreading the protection wider than is necessary.
The other point is that, speaking from my experience of prosecuting before juries, it is extremely important that juries should have an opportunity to assess the credibility of the child witness. I recall a particular case where I led evidence from a child aged six who was completely convincing and apparently unconcerned about the surroundings in which she was giving her evidence. The fact that she was so obviously credible made all the difference in securing a conviction against somebody who had in that case abducted her. I am a little nervous about intermediaries because that reduces the impact of the utter frankness which this little girl displayed when she was describing what happened to her. She could not, for obvious reasons, give a full account of all that was done to her because she did not have the language, but her account was absolutely gripping, and the jury, I could feel, sensed immediately that she was undoubtedly speaking the truth. It would not have been nearly so obvious if there had been some kind of protection around her.
There may be cases where the protection is essential; there may be others where it would be unwise if convictions are to be obtained. I am sure the Government will wish to think very carefully about the extremely important points that have been raised. It does require quite careful scrutiny.
Lord Ashton of Hyde
My Lords, I thank the noble Baroness, Lady Howe, for waiting so long to express her views on this issue to the House and her commitment to these issues. If I understand her intention correctly, she is seeking to introduce, through Amendment 144, a new clause which would provide for the use of remote sites for certain young witnesses and, through Amendment 145, to mandate the use of intermediaries for witnesses under the age of 11.
I first reassure the noble Baroness and this House that the Government take seriously the support of victims and witnesses across the criminal justice system. Indeed, special measures are already available to assist vulnerable and intimidated witnesses in court, including all witnesses under 18 years old. These measures can include screens round the witness box to shield the witness from the defendant, evidence by live link and the use of a registered intermediary or communications specialist to ensure that the witness understands the questions being asked.
Children are automatically eligible for special measures to ensure that they are able to give their best evidence. The presumption is that in most cases children should give their evidence by video-recorded statement, which would be played during the trial as their evidence in chief. In addition, any further evidence or cross-examination will ordinarily be conducted via live link and the court may permit a supporter to be present. The aim is to minimise the number of times a child is questioned and to enable them to give evidence from outside the courtroom.
We fully support looking at other ways to help vulnerable and intimidated witnesses give their best evidence. We know that the court environment can be challenging for some witnesses and are exploring ways in which we can use remote links and developments in technology to help such witnesses give evidence from outside the court building.
On Amendment 144, I advise the House that a majority of Crown and magistrates’ courts already have the facilities that allow witnesses to appear by secure videolink from a different location to the trial court. The use of remote videolinks, and extending this to other non-court sites, will not require any new legislation. We have recently committed to establishing at least one non-court location in each court area for vulnerable witnesses to give their evidence, as the noble Baroness mentioned.
The noble Baroness asked what else we were doing in this regard. We are using live-link technology in piloting pre-trial cross-examination in Kingston, Leeds and Liverpool Crown Courts to help vulnerable witnesses give their best evidence. This has the advantage of sparing witnesses from the full courtroom atmosphere by allowing the cross-examination to take place before the trial, as well as allowing evidence to be given closer to the time of the event. The pilot will end this month, followed by an evaluation and decision early next year on any further rollout if the measure is successful.
On Amendment 145, I am afraid that the Government are not convinced that the mandatory provision of a registered intermediary is necessary or always helpful—this pertains to the point made by the noble and learned Lord, Lord Hope. Intermediaries and other special measures should be used based on a witness’s assessed needs rather than offering blanket provision to any group. Witnesses retain the right to decline the offer of assistance from an intermediary if they do not want this assistance. We must instead ensure that witnesses receive the right type of special measure and that they are fully informed and supported, especially young children.
We are working closely with our partners in the criminal justice system to ensure that a witness’s need for a registered intermediary is identified. We continue to assess regularly the capacity of the intermediary workforce to ensure that we can plan for and meet demand. This includes considering future plans to increase the number of intermediaries available. We know that the demand for registered intermediaries is steadily increasing and is at its highest level since the start of the scheme 10 years ago, which is very encouraging. We are working with the police and the CPS to improve identification of the need for registered intermediaries for vulnerable witnesses in addition to assessing workforce capacity given the current demands for the scheme. This would include planning for future recruitment campaigns. On the details of Amendment 145, I can assure the noble Baroness that intermediaries must be screened by the Disclosure and Barring Service and meet a number of other criteria before joining the witness intermediary scheme.
I recognise and support the sentiments behind the amendments. However, in the light of our work in this area, the Government do not feel that either is necessary. In the light of my explanation, I hope that the noble Baroness will reconsider her position and not press her amendments.
Baroness Howe of Idlicote
My Lords, I thank the Minister for the attention that he has given to both the amendments. I also thank the noble and learned Lord, Lord Hope, for what he said.
It is encouraging to hear that the Government are doing their best to increase the number of registered intermediaries, but one would need to know a little more about just how fast it is likely to happen. Obviously, I will read carefully what has been said by everyone in this debate. For the moment, I will withdraw my amendment, but it is possible that we will be back with another comment at a later stage.