Criminal Justice and Courts Bill

Lord Hope of Craighead Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, perhaps I may add a word to what the noble Lord, Lord Ponsonby, has said in amplification of his noble friend Lord Beecham. In addition to saying that £3 million would be made available, the Minister has been quoted as saying that a number of changes are to be introduced to ease the pressure on the Parole Board. In addition to the possibility of lay magistrates being used, as mentioned by the noble Lord, Lord Ponsonby, can the Minister outline exactly what those changes are? I am quite certain that the Supreme Court introduced the Parole Board in oral hearings because it was satisfied that the board gave a fair hearing to people, and that was how it operated. I would hate to think of some of the parole decisions being reduced to bureaucratic decisions taken by officials.

[Lord Hope of Craighead (CB)]

My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.

[Lord Faulks]

My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.

Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.

We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.

The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I support the amendment and in particular the intervention made by the noble Lord, Lord Marks. In doing so, I remind the Committee of one group of people whom I mentioned during the debate to which my noble and learned friend Lord Lloyd referred. I refer to prison staff. I am glad that the noble Lord, Lord Marks, mentioned the word “hope”, because when I inspected prisons in which full life tariff prisoners were held, their governors made the point to me that the fact that those cases could be reviewed, which was not necessarily the same as that they might be released, gave the prisoners hope and therefore enabled them to conform with the prison regime. That was vital for the purposes of the prison staff who had to maintain the regime. It is important in considering this that the role of the staff should not be forgotten.

[Lord Hope of Craighead]

I want to add a footnote to the points made by the noble and learned Lord, Lord Phillips of Worth Matravers, based on my own experience. I became the Lord Justice General of Scotland about 25 years ago. At that time, one of the sentences that was available to a trial judge was a discretionary sentence that a person would be detained without limit of time. It was not a sentence of life imprisonment, but was in effect, as it was put in the case of young offenders, detention at Her Majesty’s pleasure; that is, at the discretion of the Secretary of State.

While I was holding that office, Strasbourg began to pronounce on the compatibility with Article 3 of that kind of system. It was decided in Scotland that the system was no longer maintainable, and what was required of me as Lord Justice General was to examine the cases of all those who had been given that kind of sentence to provide them with a tariff—or, in the Scottish terminology, a punishment part—which would set the date as from which their cases might be considered by the Parole Board. Until that was done, it had been entirely at the discretion of the Secretary of State, and it was thought that that was improper. The system that was devised was to require a judge to review such cases, recognising, as others have suggested today, that it would be incompatible with the convention for the decision to be left with the Secretary of State.

It was a very unpleasant exercise for me as the people who had received those sentences had committed the most appalling crimes. In comparison with life sentences, which sometimes were relatively simple, these people deserved the most condign punishment. Nevertheless, it was decided that they required some kind of certainty, removed from the discretion of the Secretary of State, so that they could plan their time in prison and there could be some method for review. It was not of course for them to be automatically released; that was not the point of it. It was so that their time in prison could be subject to a regime which would give them, as was said by the noble Lord, Lord Ramsbotham, some reason for hope that, possibly, in the very long term and in exceptional circumstances, they might be released.

The system being put forward in this amendment is therefore very similar in principle to one which was introduced about 20 years ago in Scotland to cure a similar problem about leaving the matter to the discretion of the Secretary of State. For that reason, I, too, support the amendment as being sound in principle.

[Lord Elystan-Morgan (CB)]

My Lords, seldom can there have been such an array of distinguished supporters for any amendment, and all I seek to add is some very short footnotes.

There are principles of immense worth and significance that are associated with this issue, one of them being, as so many speakers have pointed out, that there is no such thing as an irredeemable prisoner. I remember the very first day that I came here, which was about 33 years ago. A very distinguished judge had said that, in his vast experience, he had not thought that prison had reformed anybody at all. I remember thinking then about the exact wording of Rule 1 of the Prison Rules 1964. The wording was that the prime purpose of punishment should be the reform and rehabilitation of the prisoner. That is not now placed quite as high—it is now third on the list—but it still occupies a prominent place. To deny the prospect, remote though it might be, of redemption and the even more remote prospect of release—this will operate only in a very few circumstances—would be to deny one of the basic tenets of our concept of justice and punishment.

Divorce (Financial Provision) Bill [HL]

Lord Hope of Craighead Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I, too, welcome this much needed Bill and congratulate the noble Baroness, Lady Deech, on bringing it forward. I know that it is the product of a great deal of thought and hard work on her part. I think we must all be grateful to her for that and for providing us with the opportunity to debate her proposals.

The measures that the Bill contains are of particular interest to me for a variety of reasons. First, to a very large extent, they bring the law of England and Wales about financial provision and property adjustment on divorce in line with the law of Scotland, as the noble and learned Lord, Lord Mackay of Clashfern, told us. I should add that I lived and worked with that system in the Court of Session for about 10 years before I came to this House as a Lord of Appeal in Ordinary in 1996. Secondly, I had something to say about that system in the high-value divorce case of Miller v Miller in 2006, which I will come back to in a moment. Thirdly, the provision about prenuptial and post-nuptial agreements recalls for me the case of Radmacher v Granatino, which was heard four years ago in the Supreme Court by nine justices, of which I was one. For all the reasons that the noble Baroness has given, legislation on these matters has for far too long been delayed and is now badly needed.

Perhaps I may start with the provisions about matrimonial property and periodical payments. These are closely modelled on Sections 8 to 11 of the Family Law (Scotland) Act 1985. It is worth noting that that Act followed closely a draft Bill that was recommended by the Scottish Law Commission in a report delivered to the noble and learned Lord, Lord Mackay—as, I think, the Lord Advocate—in November 1981. It was the product of many years’ research and it had taken a long time to be brought forward. However, there it was in 1981 and eventually that Bill was brought before this Parliament and enacted almost without amendment from the recommendations made there. The aim of the Scottish Law Commission was to do exactly as the noble Lord, Lord McNally, said: to replace judicial discretion with clear indications and principles laid down by Parliament, which the judges would be required to follow. It put forward a system that was based on what were described as fair and clearly stated principles but which left enough scope for judicial discretion to allow for different circumstances in different cases.

That Bill attracted little criticism when it was debated here but I remember, when I was sitting as Lord President in the Court of Session, being rather suspicious of it because at first sight it seemed to cut back the element of discretion for the judges too far. In fact, when one looked at the way in which it was working, it appeared that that was not really so and that there was enough discretion to allow for different cases, as the Law Commission had predicted. What I sought to do in the Appeal Court in which I sat was to discourage appeals that interfered with the exercising of discretion by the judges. The old system was fine when a very few judges in Edinburgh were dealing with divorce cases, but this measure coincided with the broadening of the jurisdiction to sheriffs sitting throughout the country. The risk of different views being taken by judges was very real, but it was an important change and, in the end, I greatly welcomed it when I was sitting as a judge.

However, there are two problems in this Bill and perhaps I might focus on them quickly. The first is the one that I mentioned regarding the case of Miller, which was drawn to the attention of the court in Edinburgh as that Act became law and was worked out in practice. It is the definition of matrimonial property and tying its net value to the date when the parties separate. The problem was that sometimes a great deal of time elapsed between the separation and the making of the award and to freeze the value at the date of the separation was in many cases seen to be unfair. That was cured by an amendment in the Family Law (Scotland) Act 2006 and I respectfully suggest to the noble Baroness that her Bill might be amended to take account of that amendment, replacing her formulation by directing attention to the date of the award.

The second point that troubled me greatly in Miller was the situation of a high-earning wife who gives up a career to look after the children, and indeed her husband, in the course of a marriage. I had before me at the time when I was dealing with Miller a letter from a lady in exactly that situation who lived in the south of England and was being taken to divorce in Scotland by her husband, in what I thought was a blatant piece of forum shopping, so that he could take advantage of the three-year “clean break” principle. Her position was that she could never return to the high-earning position that she had held before she married—that simply was not realistic—so she was being required, as the Scottish Law Commission put it, to adjust to a lower standard of living.

That seemed very unfair to me and I wondered whether the law could not be adjusted to give a little more discretion to judges to allow for such cases where high-earning women were being deprived of their ability to continue earning because of what they had done for the family and for the husband. I suggested that the law may have made sense in 1981 but, now that there was so much more equality and the opportunities for women to earn higher earnings was so much greater nowadays, it needed to be rethought. I was quite severely attacked by academics in Scotland for making that suggestion because it looked as though I was criticising the Scottish Law Commission. I was not trying to do that; I was just saying, “Let’s bring the matter up to date”. I suggest that the noble Baroness might like to consider that point, too.

I have one other point to make on the matter of post-nuptial and prenuptial agreements. The problem that the Supreme Court had in Radmacher v Granatino was twofold. First, there was a policy objection, which was based on the view that these agreements, particularly the prenuptial ones, in some way encouraged parties to breach the duty to live together that was the essence of marriage. We in the Supreme Court were able to say that that policy should be now discarded and I think that it no longer plays a part in modern thinking, but what we could not do was alter the primacy that the statutory law gave to the court in deciding whether these agreements should be enforced. It was important then, and it is important now when one reads the noble Baroness’s Bill, to substitute that with the primacy of the agreement of the parties, which takes one back to the situation that I, in common with the noble and learned Lord, Lord Mackay of Clashfern, would have seen the position to be in Scotland and indeed many other countries. That would substitute the agreement of the parties for the position of the court and in my submission that seems to fit well with the thinking in many places around the world. It would do something that the court could not do, which of course is the great benefit of legislation, as I think the noble Lord, Lord McNally, was suggesting. There is quite a lot to debate in this Bill when it comes to Committee and I very much hope that it has a Second Reading and will then proceed to that stage.

Prisoners: Indeterminate Sentences

Lord Hope of Craighead Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a privilege to follow the noble Lord, Lord Ramsbotham, and I join him and others in thanking the noble Lord, Lord Wigley, for initiating this debate. I spent some time this morning reading the report in Hansard of the debates held during the Committee stage of the Legal Aid, Sentencing and Punishment of Offenders Bill on 9 February 2012. They ended with the noble Lord, Lord McNally, the then Minister, moving that what is now Section 128 of the Act should stand part of the Bill. Having read those debates, I appreciate that several noble and noble and learned Lords who have spoken this afternoon took part in those debates too. They really are veterans of this campaign. Tributes have rightly been paid to the noble and learned Lord, Lord Lloyd of Berwick, who stands out as a leader on this issue. This is a sustained and admirable campaign to which I have introduced myself as a relative newcomer.

However, the issue itself is not entirely new to me. As the noble and learned Lord, Lord Phillips of Worth Matravers, pointed out, I sat on the appeals to this House against the decisions of the Court of Appeal in the cases of Walker and James, and had the great advantage of sitting with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who was in his place earlier, and the noble and learned Lord, Lord Judge, who was then the Lord Chief Justice. It gave us no pleasure to have to dismiss those appeals on the ground that the sentences that had been passed against the appellants could not be said to have been unlawful. Fortunately, our decision that their Article 5 convention rights had not been infringed was not followed when they took their cases to Strasbourg, so it is now clear that these prisoners will have claims by way of damages. However, that makes the situation even worse for the Government than we thought it was when we heard those appeals. There will be a large bill to pay for this mistake, in addition to the costs of incarceration, and it is growing day by day and hour by hour as we speak.

We all know that the way the IPP sentences were introduced was regrettable. The statutory scheme itself was ill conceived. As the noble Lord, Lord Marks, pointed out, it was overly prescriptive and left no room for the exercise of any judicial discretion. As a result, far too many prisoners were sucked into it. There is a warning here for this Government too. I need only mention the debate that is still going on about the wording of some of the provisions in Clause 14 of the Immigration Bill, with which the Minister will be familiar, to make the point. It is most unwise to leave judges with no room for manoeuvre. Legislation by its very nature is a blunt instrument. It cannot foresee everything that may happen in the future. Facts vary from case to case. It should be left to the judges to fine-tune what the Government seek to achieve. They can be relied on to follow the guidance and can make it fit the facts. There was no need to spell out in Section 229 and Schedule 15 what was required for them to assess dangerousness and it was entirely misguided for the then Government to insist on doing so. We all know, too, that the system was comprehensively underresourced. I need not go over the details, which have been so well rehearsed by noble Lords who have spoken before me. All I can say is that the situation they have described is one that everyone knows has no place in a decent society.

That all having been said—one can of course pile objection upon objection in looking at the situation we now have—the real point of this debate, as I see it, is to focus attention on what can be done to put an end to the situation. The most interesting part will therefore be what the Minister can tell us in his reply. It was his Government who, very commendably, provided an opportunity to find a way out when they introduced Section 128 of the LASPO Act. As the headnote puts it, that section gives the Secretary of State power, exercisable by order, to change the test for the release of, among others, an IPP prisoner. However, that provision came into effect as long ago now as 3 December 2012, yet here we are, more than a year later, and nothing has been done to put it into effect: no order has yet been made, nor has there been any announcement of when we can expect one.

On 9 February 2012, the noble Lord, Lord McNally, refused to be drawn when he was asked to say when an order under that section could be expected to be made. He said that time was needed to see how the probation rules could be adjusted in the light of the argument to which he had been listening. The Committee was told that a new system of offender management was to take effect as from April of that year and that it was expected to “result in improved targeting”. So the first question I have for the Minister is whether he could tell us what the result has been of the exercise which the noble Lord, Lord McNally, told the Committee about.

Looked at from the prisoners’ point of view, there has been no obvious improvement in their situation at all. Why, then, have no steps been taken to give effect to Section 128? Having asked that question, I have to say with all honesty that I entirely understand the view that the Secretary of State has taken, which is that he has to respect the rule of law. It is not open to him, with great respect, to alter the terms of these indeterminate sentences; nor is it open to him to alter the system that Section 239 lays down for the performance of its functions by the Parole Board. As the House made clear in its judgment in the case of James in 2009, the detention of these prisoners is, and will remain, lawful until the Parole Board gives a direction for their release. The default position—which is the position they are regrettably now in—is that, until the Parole Board gives that direction, protection of the public requires that they should be confined.

Moreover, Section 239(6) of the 2003 Act was not repealed. As a result, when he is giving directions to the Parole Board under that Section 128 of the 2012 Act, and indeed under Section 239, the Secretary of State is required to have regard to,

“the need to protect the public from serious harm from offenders”,

and the need to secure “their rehabilitation”. I cannot see an escape from that situation as the legislation stands at present—that is what the law requires. One simply cannot assume, without looking at the facts of each case, that all those in a given category are fit for release immediately.

However, the situation is not beyond repair. Section 128 of the 2012 Act requires the Secretary of State to steer a narrow course. As the noble and learned Lord, Lord Lloyd, said, it is his duty to exercise the power which Parliament gave to him. There are no short cuts but I cannot understand why he is unable to find a way to exercise that power in the way that Parliament contemplated. The headnote talks about changing the test for release. Can the Minister tell the House what the current tests are, what steps are being taken to see why they are not fit for purpose—as they obviously are not—and what thought has been given to changing them so that they are? I do not see that as changing the terms of the sentences; it is all about changing the test to be applied by the Parole Board. There is great force in the point already made that the power under Section 128(1)(b) should be used, which inverts the onus and requires the Parole Board to direct release unless the Prison Service can satisfy the board that the prisoner should not be released.

There is one further point that I should like to make. There are other things that could be done. The noble Lord, Lord Ramsbotham, drew attention to them in the debate on 9 February 2012. He said then, as he did this afternoon, that there was a need for someone to be,

“made responsible and accountable to the Secretary of State”.—[Official Report, 9/2/12; col. 437.]

Having looked at the idea, there is much to be said for that proposal. Again I ask the Minister: what thoughts have been given to the proposal that was made in that debate in 2012? If it is difficult for him to answer the question immediately, will he be kind enough to write to us to explain what the answer is to the various questions that have been put?

Justice: Academic Research on Jury Decision-making

Lord Hope of Craighead Excerpts

Wednesday 12th March 2014 Lords Chamber

[Lord Faulks]

Directions to the jury are a matter for the judge in the individual case. Judges are making ever more use of written directions, particularly in difficult cases. Very often, they will provide a direction having heard submissions from both prosecution and defence counsel so that they can arrive at an agreed direction. They will give the direction orally and then again in writing. In simple cases, that may not be necessary, but in other cases it is clearly desirable.

[Lord Hope of Craighead (CB)]

My Lords, is the Minister aware that academic research of this kind has been permitted in New Zealand for at least 20 years and the product of that research is in the public domain? Its system of justice is very similar to ours. Does the Minister think that we might have something to learn from its experience?

[Lord Faulks]

In answer to the first Question, I indicated that the Ministry of Justice is considering the Law Commission’s recommendation and will of course bear in mind what is said there. The safeguards identified in that report are the same safeguards as exist at the moment. We remain open to persuasion. A Bill will in due course be coming to your Lordships’ House containing various provisions about juries. It is possible that there may be some amendment to that effect.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Tuesday 11th March 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I supported the Government on the clause at Second Reading and again in Committee and on Report. At the risk of wearying your Lordships and displeasing, yet again, those who procured the original amendment of the noble Lord, Lord Pannick, I support the Government again on their proposed amendment and I resist that of the noble Lord, Lord Pannick.

For my part, I, too, accept that this reformulation is in substance no different from its predecessor. Because it avoids the explicit language of guilt or innocence, it may be regarded however, as better able to resist what at one stage was suggested to be its vulnerability to challenge under Article 6 of the European Convention on Human Rights.

I do not propose to repeat all the arguments that I canvassed in support of the Government’s approach at the earlier stages. I now make just three basic points. First, there is all the difference in the world between, on the one hand, a person’s right to be acquitted and thereafter presumed innocent whenever there is any lingering doubt as to his guilt and, on the other hand, the right to monetary compensation for his incarceration pending that eventual acquittal. On Report, the noble Lord, Lord Cormack, reminded us all, and indeed the noble Lord, Lord Faulks, reminds us again, that it is better that 10—the noble Lord, Lord Faulks, says 99—guilty men go free than that one innocent man be convicted. Of course, that is so and it is integral to our criminal justice system, but it by no means follows that it is better that 10, let alone 99, guilty men get financial compensation rather than that one innocent man goes uncompensated. That illustrates the total distinction between the presumption of innocence and the right to go free if there is any doubt at all about the safety of one’s conviction and, on the other hand, the right to monetary compensation for the period of incarceration until that innocence can be established.

Secondly, the present formulation put forward again by the noble Lord, Lord Pannick, is, as has been explained, essentially that of the majority in the Supreme Court in Adams—a majority of five votes to four. The then Lord Chief Justice, my noble and learned friend Lord Judge, who, alas, cannot be here today, and I were in that minority of four. The majority preferred it to the test of the minority that the claimant should have to establish his innocence. In truth the majority’s formulation is a fudge—indeed, an unprincipled fudge. None of the parties in the case argued in support of it—not even leading counsel who appeared as interveners for Justice. They were all arguing for compensation to be paid to all those whose appeal eventually succeeds. Now no one pursues that absolutist view. Of course, under this fudge, compensation would still be required to be paid even to those who, albeit entitled to succeed on their appeals, can nevertheless be seen clearly to have committed the offence.

I have given various examples of this at earlier stages. Today I shall give just one. Let us suppose that a defendant confesses his guilt and in his confession discloses facts of which only the perpetrator of the crime to which he is confessing could have knowledge. Later, however, on a late appeal, he is able to establish that that confession was induced by, for example, a promise that if only he would confess his guilt he would get bail. Once that is established the confession has to be set aside as one induced by guilt, even though it is self-evidently true as a confession. He is entitled to succeed on his appeal but is he really to be regarded as entitled to compensation, which could run to hundreds of thousands of pounds? I would suggest not.

My third and final point is on certainty. Again, the noble Lord, Lord Faulks, has made this point. I should have said earlier that, alas, I missed the first few minutes of his speech as it never occurred to me, in common with one or two others, that this Bill would be reached at the stage that it was. I apologise for that but I think I heard everything that he said that needed to be heard by somebody supporting his case. The proposed formulation is very far from easy to apply. Perhaps a good illustration of that is the tragic case of Sally Clark—a case about which the noble Baroness, Lady Kennedy of The Shaws, spoke more than once at earlier stages of the Bill. It is a case which raises considerable and understandable emotions. On my reading of that case—I believe this to be correct—the Court of Appeal never went further than to say that on the fresh evidence that had come to light a jury might well not have convicted her. It was not said, in the words of the proposed amendment of the noble Lord, Lord Pannick, that the fresh evidence showed—let alone showed “conclusively”—that the evidence against her at trial had been so undermined that no conviction could possibly have been based on it. Maybe, in the light of all the material, the jury would have convicted; maybe it would not.

If it is said that I am wrong in my understanding of that case, it just goes to show that the proposed formulation will lead, not to the desired clarity and certainty in the law, but to further protracted litigation on this issue. As the Minister said, based on the Court of Appeal judgment, it is perfectly simple for him to form a view —yes or no—on whether, in the light of all the material, this defendant was indeed innocent of the charge and therefore whether or not it was a clear miscarriage of justice in that sense. The elected Chamber rejected this House’s amendment first time round and I respectfully suggest that we should not challenge it again.

[Lord Hope of Craighead (CB)]

My Lords, I had the advantage of listening to the whole of the Minister’s address with great care. I respectfully say that it was very well put across. However, I remain of the view, advanced by the noble Lord, Lord Pannick, that the Commons amendment should not be accepted. I have spoken on this matter on a number of previous occasions, so I will make a few short points.

I agree entirely with the Minister that the issue before us is what is meant by the phrase “miscarriage of justice”. This still remains in Section 133 of the 1988 Act because in this Bill we are adding a new subsection to try to explain what the basic rule, set out in subsection (1), is all about. Therefore one has to consider how that works out in practice, given the nature of our criminal appeal process. In effect, it is an element of working out the court’s function in the appeal and the position the Secretary of State must take, given the material in the Court of Appeal’s judgment.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, has confirmed that the Court of Appeal does not have to ask itself whether the appellant was innocent: it has to consider whether the conviction was unsafe. No one is suggesting that that should be the test applied when working out whether there has been a miscarriage of justice. The problem with the test which the Minister is now suggesting and which is in the Commons amendment is that it is striving for something which is, in nearly every case, almost impossible to demonstrate. I prosecuted for four years in the course of my career at the Bar and secured a number of convictions. It frequently occurred to me that we—by which I mean the jury, the prosecutors and everyone else who was looking on—were not there. It is so difficult to work out what actually happened: one can only proceed on evidence. The Crown’s function is to demonstrate guilt as best it can on the evidence but it is extraordinarily difficult to work out whether somebody did not commit the crime and put it in a positive way in favour of the accused if you did not actually see what happened when the crime was committed. You have to rely on other people to demonstrate that fact. That is the basic problem with the test being suggested.

In my judgment in the case to which the noble Lord, Lord Pannick, referred, I recorded that when Article 14 of the covenant, from which we take the phrase, was being discussed it was suggested that the test of innocence should be put in to elaborate what was meant by miscarriage of justice, but it was not put in to the final draft. The matter was considered then but it was taken out and we are left with a phrase which we now have to construe and apply.

Without going on any further, I suggest that a better way of approaching it would be to tie the phrase, as carefully as we can, into the way our criminal process works, in a world where there can rarely be absolute certainty. We cannot achieve mathematical certainty in our system of criminal justice: we are not expected to. Because of that, I suggest we take the practical approach embodied in the phrase proposed by the noble Lord, Lord Pannick. I support his amendment.

Social Welfare Law

Lord Hope of Craighead Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a very real pleasure to follow the noble Baroness and her very thoughtful speech and to follow the right reverend Prelate. I join with the noble Baroness in congratulating him on his maiden speech. My impression in listening to both of them is that they contribute real value to this debate because they have experienced at first hand the problems that we are talking about. Some of us who are lawyers, such as myself, do not have that privilege, although of course we encounter many of those who are in trouble. But it is the real value of their contribution that needs to be studied very carefully, based on their own first-hand experience of the problems that we are talking about.

As for the report of my noble friend Lord Low, I express deep admiration for what he and his commission have achieved. I confess that I read the report with a mixture of despair and relief, rather like the noble and learned Lord, Lord Woolf, who talked about a mixture of feeling worried and encouraged. The element of despair comes from the appreciation that the report brings of the state in which we now find ourselves. Step by step, we have got into a position of real difficulty, in which so many gaps exist right across the system where legal advice and support are not available. It would be wrong to say that we have sleepwalked into this problem, because so many people have been advising Governments, particularly this one, time and again, that cutting back so much on legal aid, for reasons that we all understand, would add to and create this problem.

The relief and encouragement comes partly from the way in which the commissioners have gone about their work and the integrated approach that they urge the Government to adopt, and also from the various signs throughout the report of what is going on elsewhere in other sectors. The point that I wish to draw to the Minister’s attention is the need in this integrated approach to support what others are doing to fill the gaps.

Let me give one particular example based on my own experience in dealing with students in two of the Scottish universities. I know that the report deals with the position in England and Wales, but Scotland is not all that different; the problems are very similar. One thing that has been growing, both in Scottish universities and certainly in the universities in England and Wales as well, is an appreciation by students of the gaps that emerge and the part that they can play in filling them by providing legal advice where it is needed. There are two particular projects that I know about, one of which was started in 2003 by the University of Strathclyde Law Clinic, which is the largest of these institutions in Scotland, with 195 student advisers, and more recently the Aberdeen Law Project, which started in 2009 and has much the same ambitions, conducting much the same kind of work.

These projects are guided by lawyers within the academic community. They are also funded, to a very substantial degree, by law firms. It is a pro bono exercise. DLA Piper provides funds for the Strathclyde clinic; Pinsent Masons provides funds for the Aberdeen Law Project. This is greatly welcome, for, while the universities themselves would like to provide financial support, it is very difficult for them to do that, given the pressures on their own funding.

There are ways in which the Government can encourage these projects, one of which was demonstrated by the noble and learned Baroness, Lady Scotland of Asthal, when she was in government. She encouraged and participated in an annual awards scheme to student organisations of this kind. It so happened that Strathclyde won the competition in one of the years I was chancellor. She was there, she encouraged what they were doing, and she gave the feeling that the Government were behind what was being done by these student bodies. That is valuable encouragement. It helps those who are thinking of providing funding to feel they are doing something which is in the broad public interest as well as in the interest of the students themselves.

The other aspect of the problem is the work done by the courts. The noble and learned Lord, Lord Woolf, made major strides in simplifying the way in which the courts go about their work. One point, which I particularly emphasise, is the way in which he educated us all in the need for case management, a phrase that I did not encounter in the early days but is now on everybody’s lips, and it works all the way down through the system. It is a means of simplifying issues, working with the litigants in person to be sure that as little time as possible is wasted and people identify the issues as soon as they can.

There is the emphasis in paragraph 5.27 on the need for independent advice. I thought that was a valuable point, partly because I have been serving on a Select Committee on personal service companies, a rather complicated tax matter. Part of the evidence that we have been hearing comes from people who have been trying to use an advice system that the HMRC provides for people who think they are in difficulties. The HMRC says that the advice system is completely independent and that nothing will be communicated to the tax inspectors. People do not believe it, and it is underused. There is, therefore, something to be said for the point drawn attention to in that paragraph—for the Government appreciating that there are independent advisers who need to be supported, as well as government-based advice systems.

The other point worth stressing, as others have done, is the way in which modern technology can be brought to bear to encourage people to seek advice. Younger people than I have apps attached to their iPhones which have access to all sorts of things. I have just acquired an iPhone, and I have been discovering its wonders. Surely there are things the Government could do to increase the accessibility of advice—of knowledge of how systems should be made to work in people’s interests and of the complex system of social benefits. There are avenues to which this report draws attention which are well worth pursuing and should not cost a great deal if proper advice is obtained.

I endorse the point made by the noble Lord, Lord Bach—that there is an opportunity, because of the timing of this report. As he said, we should not let the opportunity go. I would warmly endorse that and all the recommendations made in this excellent report.

Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014

Lord Hope of Craighead Excerpts

Monday 24th February 2014 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the purpose of the draft order is to give legal effect to the administrative merger that took place just over four years ago, on 1 January 2010, between the Revenue and Customs Prosecutions Office, which was the prosecuting arm of HM Revenue and Customs, and the Crown Prosecution Service. The decision to merge the CPS and the RCPO was announced in April 2009 by the noble and learned Baroness, Lady Scotland, who was the Attorney-General at the relevant time. The purpose of the merger was to create a strengthened prosecution service, to safeguard and improve the high-quality work done by both organisations in serious and complex cases and to provide efficiency savings. Those objectives have to a large extent been achieved.

The merger that took place in 2010 did not involve legislation. Sir Keir Starmer, who was then DPP, was appointed Director of Revenue and Customs Prosecutions as well. Since that date, the person holding the positions of both DPP and Director of Revenue and Customs Prosecutions—now Ms Alison Saunders—has been running the two offices under one umbrella. There is a single management structure and cases investigated by HMRC are now prosecuted by a specialist fraud division of the CPS.

Although the administrative merger has been a success, there are disadvantages in the two organisations still existing as legally distinct entities. First, it might give the appearance that the merger is incomplete and could readily be reversed. This might call into question whether the change is intended to be permanent. Secondly, it has practical implications for how the organisations work. The Government consider that a legal merger would bring about greater efficiency and effectiveness. That is why we are bringing forward the present draft order under the Public Bodies Act 2011. The Act provides for the functions of certain public bodies—listed in the schedules—to be abolished, merged or transferred. The effect of this draft order is to transfer the functions of the Director of Revenue and Customs Prosecutions to the DPP, thus putting the existing merger of the RCPO and CPS on a statutory basis.

As there is a requirement for Ministers to consult on proposals before laying a draft order under the Act, a consultation exercise took place in 2012. Views were sought on the proposal that legal effect should be given to the administrative merger and on whether the proposed approach would achieve the desired effect. Those organisations and individuals who commented—only eight did so—either supported the proposal or did not object to it. There was concern that the specialist expertise of the RCPO should not be lost; the Government agree that this is an important aim. As the consultation response explained, cases investigated by HM Revenue and Customs are handled within the CPS by the same specialist casework division that prosecutes the most complex and serious fraud and corruption cases investigated by the police.

An order made under the 2011 Act must serve,

“the purpose of improving the exercise of public functions, having regard to (a) efficiency, … (b) effectiveness, … (c) economy, and … (d) securing appropriate accountability to Ministers”.

I am grateful to the Secondary Legislation Scrutiny Committee for its careful consideration of the draft order, and I welcome its conclusion, which was expressed in these terms:

“the Government have demonstrated that the draft Order serves the purpose of improving the exercise of public functions and complies with the test set out in the 2011 Act”.

I do not think that your Lordships would welcome a detailed description of the draft order, which—as is so often the case—is by no means as brief as my summary of its effect might suggest. As for its effect, I cannot do better than quote these lines from the Scrutiny Committee’s report:

“The Government present a convincing argument that the overall effect of the transfer of the responsibilities of the RCPO to the CPS will result in streamlining the process by including it in a larger group where economies of scale can be identified from using prosecutors and administrators for a wider range of duties. Although the economies realised by this Order are comparatively small, the improvements to efficiency are more substantial, with the potential for the more flexible structure possible under the new arrangements”.

I commend the order to the Committee. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords—

[Lord Beecham (Lab)]

My Lords, try as I might—oh, I am so sorry.

[Lord Hope of Craighead]

My Lords, perhaps I can insert a few words of welcome for the measure. I used to prosecute in the High Court of Justiciary in Scotland as an advocate depute. From time to time, cases arose north of the border where the Revenue wanted to prosecute in the High Court. As the Minister will know, in Scotland all prosecutions are in the hands of the Lord Advocate. I remember having to deal with officials from the then Inland Revenue and, separately, HM Customs, who were somewhat upset that they could not conduct those prosecutions themselves but had to hand the papers over to me or my colleagues so that we could conduct the matters on their behalf.

Of course, the order has nothing to do with the position in Scotland, which is quite unaffected, and it is unnecessary to do anything about it because it is well established that prosecutions will continue to be handled by the Crown Office under the overall supervision of the Lord Advocate. As the noble Lord said a moment ago, my experience was that efficiency was promoted by combining the prosecution element—the exercise in presenting the material in accordance with the best use of the courts—in one body. It seemed to me at the time rather odd that, south of the border, there was this division of functions, which gave rise to uncertainty in my mind as to exactly why it was necessary for there to be a separate prosecution system at all in the hands of the Revenue or HM Customs.

So, from a rather unlikely quarter, I admire what is being done administratively and entirely approve of the Minister’s suggestion that it should now be endorsed in legislation. I am sure that this is a good measure to promote efficiency.

[Lord Beecham]

I must begin by apologising to the noble and learned Lord. I had not noticed that he was here and obviously intended to speak; I apologise for that.

As I said, try as I might—and I certainly tried—I cannot find anything much to object to in the 19 pages of the order or, indeed, the 134 amendments embodied in it. The principle is clearly right and it is sensible to combine the two positions. However, although this does not quite fall within the Minister’s brief, there are still questions to be asked about the operation of the service as a whole, particularly in relation to staffing.

Of course we are only talking about part of HMRC for the purposes of the order, but within HMRC there have been significant staff reductions. To be precise, 1,697 staff left in 2012-13. That forms part of a significant reduction in funding of HMRC amounting to about £2 billion, or 16.5%, by 2015. The Chancellor’s reinvestment, as it were, of £154 million, which was announced with a flourish a couple of years ago, will not make much of an impact on that massive cut.

The question arises, therefore, about the implications for staffing on what had been the HMRC function. Will the staff be protected, or will there be reductions? The record of HMRC in recovering moneys is clearly not very good. The Public Accounts Committee criticised it for collecting more than £1 billion a year less in December 2012 than it would have done, had it had the relevant staff.

Another question in relation to staffing is: will those who will be employed in the completely unified structure be paid comparably to those with whom they will no doubt be locking horns in the private sector? For that matter, is there much of a two-way flow between the department as it is now constituted and the private sector? I am not talking about the prosecution side thus far, as far as I am aware, but concerns have been expressed about people coming to work for the Inland Revenue from the private sector and then going back to the private sector and so on. I am not asking the Minister to answer this today, but it would be helpful if he would let us know the position in relation to movement inward and outward of staffing, particularly on the Inland Revenue side.

One of the concerns raised—I do not think with any great force in the consultation—was about the need to maintain within the prosecution side expertise of Inland Revenue matters. The Government seem to be satisfied on that, and I am not challenging that assertion, but it underlines the need to keep an eye on matters. No doubt the Government will be reviewing the situation as it progresses.

A further point relates to the third arm of prosecutions in this country, which is the Serious Fraud Office, which comes under the aegis of the Attorney-General and is separate from the DPP and HMRC, which we are now discussing. Given the somewhat challenging history of the SFO in recent years, I wonder whether it might be opportune at some time to consider a further merger between that department and the structure that we are formally approving today. I am not suggesting that the Minister can give an immediate response to that, but it is something that his colleagues could look into. In principle, it might seem sensible to have a seamless prosecution service dealing with serious fraud and tax fraud and the other matters that come under the direct surveillance of the DPP.

Having said that, we certainly do not object to this order and wish the fully combined departments well in their endeavours on behalf of the public and the taxpayer.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Lord Hope of Craighead Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, like the noble Baroness, Lady Kennedy of The Shaws, I am a member of the Joint Committee on Human Rights, and both of us took part in the evidence session with the right honourable Lord Chancellor and Secretary of State for Justice. That was just at the moment when the noble Lord, Lord Faulks, who has the misfortune to have to reply to this debate, was no longer able to be with us because he had been told that he was about to become a Minister. Therefore tonight we will have an excellent example of the poacher who has now turned gamekeeper, as it were, for Her Majesty’s Government. I will make one point that I put to Mr Grayling, which I do not think he answered in a very satisfactory way.

If the Government stick to their regulations, as they will, the consequence will be that more cases will go to Strasbourg for want of effective domestic remedies in this country. That is not something we should want; it is much better that effective remedies are provided in this country. Why do I say that? I have the cases of Sidney Golder and Reuben Silver in mind. Sidney Golder, many years ago, was a prisoner who thought that he had been defamed by a member of the Prison Service, and he wanted to go to a solicitor to see whether he could sue for libel. The Home Office said, “Sorry—you can’t go to a solicitor while you’re a prisoner”, so Mr Golder had to go to Strasbourg. The Strasbourg court said, years and years ago, “There must be an effective domestic remedy. Access to justice is a fundamental right, and prisoners are entitled to that right”. Therefore Golder led to reform of the prison rules, or was meant to do so. I was working in the Home Office with Roy Jenkins on the subject, and I am sorry to say that Home Office officials did not do as they were instructed, so that led to the case of Mr Silver.

Reuben Silver was an Orthodox Jew, and he wanted to know whether the food he was receiving in prison was kosher. He wrote a letter to the editor of the Jewish Chronicle marked “not for publication”. It was stopped on the ground that you must not write to the press. He also wrote to the Chief Rabbi, but was prevented from sending that letter on the ground that he had not known the Chief Rabbi before he became a prisoner, under the rule that said that you had to know the person beforehand. Therefore Mr Silver was one of my seven prisoner clients who went to the Strasbourg court complaining of the absence of a domestic remedy. The Strasbourg court had no difficulty in finding that the prison ombudsman could not provide and had not provided an effective remedy, and the same would be true today.

Those cases are not just routine internal disciplinary matters. I lost another case called Boyle and Rice in which they complained about being moved from one place to another and not having artwork, and so on. That is the kind of case which Mr Grayling is perfectly right to say should be dealt with by the ombudsman system. However, there are other, grosser, cases where that is not so. When I put this to Mr Grayling in evidence his reply was, “Well, I’m sure that in that sort of case you can find barristers who do no-win, no-fee cases”. That is no answer; for a prisoner to have to find such a barrister and to negotiate with the clerk and all the rest of it is patently absurd. One overwhelming reason to regret what has happened is that it will lead inevitably to more cases going to Strasbourg, which is not in the interests of anybody.

[Lord Hope of Craighead (CB)]

My Lords, I suppose that one should be grateful for small mercies and welcome what is provided for in Regulation 4(2) and (3): advice and assistance for issues relating to the release by the Secretary of State or for consideration for release by the Parole Board, and for proceedings that involve the determination of a criminal charge. However, they are very small mercies: these provisions were, of course, unavoidable. They are essential to protect against the risk of challenge by prisoners whose basic rights under Articles 5 and 6 of the convention were being infringed.

The point is this: there are very real grounds for concern as to what is being left out, a list of which is set out in paragraph 7.6 of the Explanatory Memorandum. For reasons of time, I will not go over the details, but one is bound to ask how robust the system of complaints is on which there is so much emphasis and to draw attention—as the noble Lord, Lord Pannick, has done—to the effect of the absence of legal advice, which always focuses the issue more directly and saves money by directing attention to where the problem really lies.

The other major gap is that to which the noble Baroness, Lady Kennedy, has drawn attention; namely, the position of the vulnerable, of whom there are so many, both male and female, in prisons and in young offender institutions too—for example, those with language or learning difficulties. I am struck by one of the provisions in paragraph 9.2 of the Explanatory Memorandum, which tells us that a note has been issued for distribution to prisoners to explain the changes to the system—but what provision is being made for those who cannot read or who do not speak English? Can we really be confident that steps are being taken to deal with their needs and give them the advice they need?

At the heart of this is something else, which, I suggest, is profoundly worrying: the increasing tendency to treat prisoners as some kind of an underclass. They are to be regarded as having surrendered their right, when they go into custody, to be treated like everyone else, except to the extent necessary to serve their sentence. We are all familiar with the debate about prisoner voting; but the effect of denying them the vote is really quite trivial when compared with what these changes will mean for many who are in a position that puts them at such an obvious disadvantage when compared with everyone else, having been locked up by the state.

Paragraph 7.4 of the memorandum states that the amendments aim to target limited public resources at the cases that really justify it. So far so good; but then there are the words,

“to ensure that the public can have confidence in the scheme”.

Those really are weasel words. What is the basis for that claim? Who are the public? What do they know about the effect of all these provisions on prison law? What about the prisoners, their wives, parents or children? What about the many organisations and individuals who really do care about the mistreatment of prisoners or their rehabilitation?

Some years ago Justice Breyer of the US Supreme Court observed in a lecture in London that it is not the job of judges to be popular. That is why we have judges who are not elected. If you want to be popular, you have to win votes: you must appeal to the majority. Of course, one way of doing that is to devalue the rights of the minority. When it comes to the use of resources, there is a temptation: they can be diminished or left to one side because the majority can be relied upon not to care about them and not to object. That is all about winning the confidence of the majority, which is what this sentence really refers to. It is not difficult to imagine what, in the wrong hands, this may eventually lead to. The line of thinking, therefore—the political philosophy that seems to underlie these proposals—is perhaps even more worrying than all the details which, in themselves, are so troubling. I join others in expressing my thanks to the noble Lord, Lord Pannick, for bringing this Motion before the House.

[Baroness Butler-Sloss (CB)]

My Lords, I, too, regret very much these legal aid regulations in relation to prisons. The amount concerned is apparently about £4 million. The cost of each lawyer to give advice or representation is a fixed fee of £220. As the noble Lord, Lord Pannick—who, in my view, has done the House a great favour by bringing this issue before noble Lords—has already said, that is achieved very often by a letter that resolves the problem.

I received a very interesting and useful e-mail from a committee member of the Young Legal Aid Lawyers, which is a group of students, lawyers and barristers committed to practising areas of law traditionally funded by legal aid, which includes prison law. They raised three points that I want to make to the House, which identify three vulnerable groups. They have been referred to already, so I hope that the House will forgive me for referring to them again.

One group of young people—they are children—have advocates from Barnardo’s, which is a step forward. As far as I know, however, they are not lawyers and do not provide that specialised help which, for instance, is needed in the resettlement of young people who come out of secure accommodation or youth prison. Those young lawyers are of course experts in dealing with these problems.

The second group is mothers and babies. The issue of mothers and babies has been raised already, but let me take a different point. As a former family judge, it is the baby that I worry about. There is no one to speak for the baby; he or she is removed from the mother, with all the emotional harm that is done to a baby in those circumstances, even if that mother and baby are reunited at a later stage. In that instance, a lawyer can help to organise it so that the mother and baby remain together.

The third group that has already been referred to is that of vulnerable adults. I will make two points. First, in our prisons there is a very high percentage of people with mental health problems. Some have single mental health problems; many have multiple problems. There is also no shortage of people without education and with learning disabilities. How on earth are they to cope with putting forward whatever is the issue that needs to be put forward if they do not have someone to help them? I doubt very much whether the internal arrangements or even the ombudsman will meet the specialised help which, for a very minor cost to the public, these lawyers can give. If, as the noble Lord, Lord Pannick, suggests, it is ideological, the money does not matter; but I suspect that for the rest of the Government money matters very much. It is not very much money and it saves a great deal. Therefore I urge not just the Lord Chancellor and the Secretary of State for Justice, but the Government generally, to rethink the balance of saving money and the damage caused by taking away this facility and the lack of appropriate legal advice and representation that to me, as a former judge, is a denial of access to justice.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Wednesday 22nd January 2014 Lords Chamber

So I come to the second reason for preferring this amendment. I suggest, as I did in Adams, that Section 133, and Article 14.6 of the international covenant to which it gives effect, has two implicit objectives. The primary objective is that an applicant who has been convicted when he was in fact innocent should be compensated for the consequences of the wrongful conviction. The second, and subsidiary, objective is that an applicant whose conviction has been quashed but who in fact committed the offence charged should not be compensated. No test will achieve both these objects in every case, but to require an applicant who has succeeded by fresh evidence in demolishing the case upon which he was convicted to go further and prove his innocence beyond reasonable doubt is surely to stack the cards too heavily against him. This amendment strikes the right balance and it is for that reason that I support it.

[Lord Hope of Craighead (CB)]

I want to add just a very few words to what the noble and learned Lord, Lord Phillips, has just said. If one stands back from this debate, everybody in this Chamber will recognise that there will be some cases, although no doubt very rare, where the state should compensate an acquitted person for the trauma, to which the noble Baroness, Lady Kennedy, referred, of being put into prison and detained there for perhaps a very long time on a completely false basis.

There are two ways of going about this. One is, as it used to be in this jurisdiction and still is in Scotland, to have an ex gratia scheme. That is, it is left to the Minister to form his or her own view in light of all the facts, without being constrained by any kind of statutory definition. In this jurisdiction—I mean England and Wales—we have departed from that and therefore we are up against the requirement of having to define in statute the nature of the exercise that the Minister performs.

The noble Lord, Lord Wigley, put his finger on the origin of what we are trying to do, which is to be found in Article 14.6 of the International Covenant on Civil and Political Rights. That states that when a final decision,

“shows conclusively that there has been a miscarriage of justice”,

the person should,

“be compensated according to law”.

There are three requirements for that: you should find that in the decision; it should show it conclusively; and it should show that there has been a miscarriage of justice. Our question is therefore what we mean by a miscarriage of justice.

I do not want to elaborate on what my noble and learned friend Lord Phillips said, but of course one bears in mind the presumption of innocence. That point emerges not just from the Strasbourg jurisdiction. As the noble and learned Lord, Lord Kerr of Tonaghmore, said in the Supreme Court in the case of Adams, on which many of us sat, the way in which the courts operate in this country does not require innocence to be demonstrated to the satisfaction of the court before a conviction is set aside. As he said,

“to prove innocence … is alien to our system of justice”.

Our methods do,

“not provide a forum in which”

that question can be examined. The question for the Appeal Court is whether the conviction was safe or unsafe.

There are some jurisdictions—the noble and learned Lord, Lord Kerr, referred to New Zealand—where a tribunal could address that issue. Of course, then it would be properly examined but we do not go that far; we do not need to because we have always believed that there was a presumption of innocence. That drives us back to the question of whether it makes sense for us to use the very words of the presumption to set out the test that is to be applied. Of course, one bears in mind the point that emerges from the European Court decisions that one should respect the presumption of innocence in the language that is used when dealing with the rights of an acquitted person.

Without elaborating, the better choice—to put it that way—is to follow the wording of the amendment that my noble friend Lord Pannick proposed, rather than the wording of the Bill proposed by the Government which has these various flaws in it that I suspect would lead to challenges one would wish to avoid.

[Baroness Hamwee (LD)]

My Lords, at the previous stage of the Bill, I said, not quite in these words, that I was glad to be able to follow those far more expert than I, as they did the heavy lifting on the amendment. I feel much the same today. Colleagues have said that they feel somewhat out of their depth on this subject. To that I say, “Yes, but you understand the concepts of proof of guilt and proof of innocence”. I congratulate the authors of the amendment, if that is not too presumptuous, and its mover, who seem to have found a way to achieve the Government’s aims, which as I understand them are greater certainty and to reduce costs—that is, not the costs of compensation but of proceedings.

As we have heard, there have been very few claims and fewer have been successful. It is not a matter of compensation for every failed prosecution, more for every quashed conviction—and there are very few of those. On those occasions, the sky has not fallen for the Government but it has for the individuals concerned. That is why compensation seems inadequate—I agree with the noble Baroness, Lady O’Loan, on that—but money is how we deal with it, so compensation is appropriate and important. For the integrity of the system, to which the noble Baroness, Lady Kennedy, referred, we must not let the sky fall because of the application of the test in this clause in the Bill.

Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Lord Hope of Craighead Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

My Lords, I greatly welcome the noble Lord, Lord Faulks, to his new Front Bench role. I have long been among his many admirers on the Bench and have benefited over many years from his invariably helpful and thoughtful submissions. I have not always been able to accept them, and it is just possible that I will not feel able to accept them tonight in regard to these amendment regulations.

The regulations remove legal aid from borderline cases. Borderline cases are those where there are no further identifiable investigations able to be carried out, yet where it is still not clear that the prospects of success are better than 50:50, but nor is it clear that they are worse than 50:50. The reason that neither is clear is because there is a basic dispute as to the law, which has yet to be clarified or developed in this particular way, or as to the facts or expert evidence.

It is absolutely critical to recognise and bear in mind in the course of this short debate that under the existing funding scheme—the scheme it is now proposed to abolish—borderline cases are funded only if they are either of significant wider public importance or of overwhelming importance to the applicant. In other words, the cases to which it is now intended to deny future funding will be either those with implications for the relationship between the state and a substantial number of individuals, or those that impact on such fundamental interests as an individual’s life, liberty, health, housing or something of that character. Surely, these cases are ones that must therefore justify a broader merits test than the bald test simply of establishing that there is at least a 50:50 chance of success.

I suggest that they justify funding so that the critical, disputed question—whether that be of the law, fact or expert evidence—can be clarified. However, instead of that, under these amendment regulations, those cases are to be condemned, deemed to be cases where the prospects of success are “poor”, or less than 50:50.

When I spoke last July on the Motion moved by the noble Baroness, Lady Deech, to take note of the effect of a whole raft of proposed government cuts in legal aid funding—which included those we are now discussing—I urged the Government to take particular note, among the innumerable responses to consultation, almost all of which were opposed for a variety of reasons, of the consultation response prepared by ALBA, the Constitutional and Administrative Law Bar Association, of which I was once privileged to be president. ALBA’s arguments were and remain cogent and convincing, not least as to the borderline cases. Among the material that ALBA presents is a 2012 study by Doughty Street Chambers—chambers that are prominent and highly respected in the field of public law and from which the just retired Director of Public Prosecutions came—showing that in the three years until then, borderline cases had achieved a substantive benefit for the funded party in between 47% and 56% of those cases, which was an average of just over 50%. I repeat, those cases are by definition important cases that affect either the public at large or the vital interests of an individual. Therefore, they are not cases from which the Government should be withdrawing funding. The suggested savings are uncertain; the price of achieving them is altogether too high.

[Lord Hope of Craighead (CB)]

My Lords, I join everybody else in welcoming the noble Lord to his position on the Front Bench—a very public-spirited move on his part, I am sure, but immensely encouraging to others who deeply regret the fact that the Lord Chancellor can be chosen in a way that removes his presence from this House and in a way that does not require him to have had legal experience. We have suffered somewhat from the lack of the sort of experience that the noble Lord can fortunately bring. It is a significant step forward and to be immensely welcomed.

I also thank the noble Lord, Lord Bach, for his Motion of Regret, which gives us an opportunity to express our regrets at this measure. I spoke, as did the noble and learned Lord, Lord Brown, in July. One of the things I said was that I hoped we would not have a succession of Motions of Regret because I hoped that these things would come up in the form of public Bills that we could then debate in depth. Unfortunately, that has not happened so I am afraid that we will have a series of Motions of Regret, one after the other.

I shall try not to repeat what others have said but the first point on which I want to comment is the borderline test itself, particularly the use to which it has been put. I have a feeling that it has a sort of arithmetical sense to it. When one talks about a borderline case, people at conferences will ask: is it above or below 50%? That is fair enough; that is what the test really means. If it is 50%, it is on the borderline. However, the problem, as has been explained by so many others, is that these things do not measure themselves arithmetically.

That brings me to a series of questions about how this will work in practice. How will fairness be achieved up and down the country? I understand that decisions are taken by independent funding adjudicators who look at the papers. We are not dealing with a single individual—it is difficult enough for one person—but one can imagine a series of people in different offices applying their minds to this test. Is any guidance to be given on how to approach the question of arriving at the borderline? If there is to be guidance, will it be made public so that we can comment on it and make suggestions, particularly if the system is to be reviewed in the future? There is then the very important point made by the noble and learned Lord, Lord Woolf: will there be any element of discretion or shading in a situation where it is difficult to say that it is exactly at 50%? Can one, for example, have a margin of error in favour of granting legal aid, as against not doing so? It is that kind of guidance, if the Minister could explain it, that would help to flesh out how this will work in practice.

The problem with the test, as has been said already, is that it introduces an unequal playing field. The state on the one hand, with all its resources, is in a position to apply a different test on whether or not it wishes to contest the claim, whereas the individual is caught by this very exacting test. There is the vital point about the development of case law. I recall a series of cases, which have already been mentioned, but because I was involved I dare to mention them again. There was the case of Purdy, but it was preceded by that of Pretty, who is unfortunately no longer alive. That was the original assisted suicide case. It was a very difficult case in which to say that she had a 50% chance of success. In fact, she lost. She went to the Strasbourg court and lost there again, but the advantage of her case was that it helped us to begin to develop jurisprudence in this immensely difficult subject, which all Members of this House will have to discuss again before too long. It cleared a lot of the ground, which made it easier to grapple with the Purdy case when it came along.

Then there were the succession of cases, to which the noble Lord, Lord Bach, has referred, in the field of social housing, which were also very difficult to predict. I bear a personal responsibility for this because I sat with Lord Bingham and the noble and learned Lord, Lord Nicholls, and, I think, the noble and learned Lord, Lord Walker, all of whom took one view. Three judges went one way but I turned the case around. Three others followed me and we were a majority of four to three. Who could have predicted that? Everyone knows—this is a commonplace criticism of the Privy Council jurisdiction in the Caribbean—that you need to know who the judges are and the way cases vary. How can one predict when it depends so much on personalities in cases that are so narrowly balanced, as they so often are in the highest courts?

The last point to which I want to draw attention is one of the difficult areas of our law, which has been repeatedly commented on. What do you do as judges, particularly in the senior courts, when you are applying Section 2 of the Human Rights Act, which refers to having regard to decisions of the Strasbourg court? Some of us have been fairly inclined to follow Strasbourg; others have not, in particular the noble and learned Lord, Lord Judge, who asked the other day in a lecture why we should do that. He said we should take an independent view. Again, one will have to guess what the judges are going to do with that jurisdiction, whether there is to be any change and who will be sitting on the panel. One can predict, looking at the Supreme Court today, who will vote one way or the other. That makes this whole idea of the borderline test extremely difficult to accept unless there is to be some really rigorous guidance, which I hope the noble Lord may be able to comment and guide us on. I would respectfully support the Motion that the noble Lord, Lord Bach, has moved.

[Lord Beecham (Lab)]

My Lords, it gives me great pleasure to join with others of your Lordships in extending very warm congratulations to the Minister on his first experience at the Dispatch Box. Of course, he demonstrated the reasons for his appointment very fully. The noble Lord is an ornament to the legal profession, just as his brother is an ornament to literature. We look forward on this side to many useful jousts over the next few months before—perhaps—there is a change of Government.

The Minister, as the noble Lord, Lord Pannick, said, has undertaken to do this work without remuneration. That is a notable sacrifice on his part. Of course it is consistent with the Government’s policy of acquiring most lawyers to do legal aid work more or less pro bono. I hope that he does not expect too many to follow his example with enthusiasm. However, that is not what we are discussing tonight.

My Lords, these regulations are yet another example of this Government’s apparently incurable propensity to legislate in haste and amend at leisure. It was, appropriately, only on 1 April last year that the Civil Legal Aid (Merits Criteria) Regulations came into force, and after a period of gestation of almost exactly nine months the present amending regulations were laid.

Why was it, we are entitled to ask, that the Government overlooked the apparent necessity to change the arrangements for borderline cases and make them ineligible for legal aid? How did they fail to spot the tidal wave of such cases, amounting—according to the estimate they now give—to all of 100 cases a year? Or the soaring cost to the taxpayer, which equates to as much as just under 0.5% of the legal aid budget?

After all, the noble Lord reminded us that, in the words of his colleague Mr Vara to the Delegated Legislation Committee,

“the motivation for change concerning borderline cases is not simply to save money. The value of our legal aid system cannot just be calculated in pounds and pence. Legal aid is a vital plank of our justice system”.

What a comfort these sentiments must be to the hundreds of thousands of people a year now denied access to legal aid; to the vast majority of practitioners and expert witnesses who are seeing their modest incomes slashed and are turning to other work; to the law centres that have closed, or, like the one in Newcastle which I visited on Friday—the only law centre between Kirklees in the West Riding and the Scottish border—that no longer provide legal aid. The Newcastle centre, which once employed five solicitors and nine staff, is now reduced to one solicitor, one full-time employee and four part-time staff, offering advice only, and only in two areas of law.