Victims and Courts Bill

Debate between Lord Russell of Liverpool and Baroness Levitt

Committee stage
Wednesday 11th February 2026 Lords Chamber

[Baroness Levitt (Lab)]

That is exactly what the Government are evaluating. I cannot go any further than that today, but those are all the things that are being considered. I cannot go any further than to say that I am listening.

I turn to Amendment 62, in the names of my noble friends Lady Chakrabarti and Lady Lawrence. I am very aware of these issues, particularly in relation to rap and drill. I knew about this amendment, but in the course of my practice and when I was a judge I have been to a number of lectures on the subject and read a number of articles, including some by Keir Monteith, King’s Counsel, who I see is sitting below the Bar today.

The question here, on the use of this material, is one of relevance. Like the noble and learned Lord, Lord Thomas, I do not want to go into a boring exegesis of when evidence is admissible and when it is not. The real concern here is to make sure that if—and it is a big if—this evidence is to be used then it has proper probative value, on the basis that it goes further than either that this defendant is a bad person because they like rap and drill music or, even worse, some spurious and crude racial stereotypes. Judges have a duty to ensure that only evidence meeting these standards is adduced and they should exclude any evidence that does not meet the required threshold—that is not a matter of discretion. However, I understand the concerns about the fact that that has not happened in all cases.

It is axiomatic to say that creative and artistic expression is of itself not a crime, and it is rare that it would feature in the evidence of a prosecution unless it inherently involved criminal activity, such as damaging another person’s property with graffiti or drawing sexual images of children. As for musical expression, the Crown Prosecution Service is clear that creating or listening to music is not a crime, but it says that, on occasion, it has encountered cases where, upon investigation into a violent offence, it became clear that drill and rap music had been used in the build-up to encourage or incite violence or to reveal information about a crime that only the attackers would know. These instances are rare and, importantly, are already subject to rigorous scrutiny under existing evidential rules. However, I am aware of the disquiet, and we understand the community concerns.

I take the point made by my noble friend Lady Lawrence. I am a lover of crime fiction but I do not think anyone is ever going to use that in a prosecution against me—well, I hope they do not. She makes a valid point.

The Crown Prosecution Service is actively consulting on this matter through a public consultation, seeking views on whether formal prosecution guidance should be issued regarding the use of musical expression evidence. We want to ensure that any future approach is clear and informed by a wide range of perspectives.

It is the Government’s view that, as currently drafted, the amendment would be unduly restrictive and would, in effect, frustrate the ability of the Crown to adduce relevant and probative evidence before the court, with the potential consequences of frustrating justice for victims in some serious cases. The Government intend to await the outcome of the CPS consultation and announce next steps in due course. I invite all noble Lords not to press their amendments.

[Lord Russell of Liverpool (CB)]

My Lords, I did not speak to Amendment 62 when I briefly got up but I did some research on it. I think it is usually the case in a particular area of law that, where you have a body of experts in particular areas of evidence, it is not uncommon for those experts to be used by both the prosecution and the defence. In doing my research on Amendment 62, I found that that is not the case. The so-called experts who are used by the prosecution are solely used by the prosecution, while the experts who are used by the defence—who would be able to talk knowledgably in the sort of detail that the noble Lord, Lord Bailey, was able to give us—are used only by the defence. That in itself tells you that there is something wrong.

[Baroness Levitt (Lab)]

I do not disagree with the noble Lord. I have already made it clear that I understand the disquiet, the concerns about it and the very real possibility for something that is in fact crude racial stereotyping to look as though it is evidence. That is why we need to await the outcome of the CPS consultation.

--- Later in debate ---

[Baroness Levitt (Lab)]

My Lords, I will start with a little trip down memory lane. In either 2010 or 2011, the noble and learned Lord, Lord Thomas, when sitting in the Court of Appeal, heard a case called Killick. That was a case where prosecution had been restarted and, as part of his judgment in relation to it, the noble and learned Lord said that the Crown Prosecution Service needed to come up with a system that would allow victims to challenge a decision not to prosecute, without them having to bring judicial review proceedings. As he may remember, I was the prosecutor who remade the decision to charge in that case and, as a result, the Crown Prosecution Service—under a certain Director of Public Prosecutions, who may be known to your Lordships in another context at the moment, and I, working as his principal legal adviser—devised the victims’ right to review scheme.

I wrote much of the legal guidance, so the noble Lord, Lord Russell, is correct when he says I know quite a lot about it. I am a huge fan of the victims’ right to review scheme, because although the Crown Prosecution Service is in many ways a completely wonderful organisation, everybody is human and sometimes people get things wrong—and when we get it wrong, we want to put it right. Obviously, a right is not a right unless it has a remedy attached to it, and that is a real problem in some of these cases. The noble Lord knows, because I discussed this with him when we met, that my practice when I was dealing with reviews of cases was always that if I took the decision to offer no evidence, I would write to the victim and say, “In 14 days I am proposing to do this, unless you want to make representations to me as to why I should not, or seek judicial review proceedings”. I completely get the issue here.

The only note of caution I will sound is this. It would be a substantial change, with wide-ranging implications for both victims and defendants. For that reason, it needs to be considered carefully, because discontinuing a case is not simply putting a pause into proceedings. Restitution requires fresh proceedings, starting back in the magistrates’ court, which risks delay and uncertainty for both victims and defendants. It does not go straight back into the Crown Court as a restart. That is why robust safeguards and controls, which are not in this amendment, are essential when making these decisions.

For example, in the magistrates’ court procedure, which this amendment seeks to replicate, the defence can refuse to accept a discontinuance and insist on no evidence being offered, or insist that the Crown Prosecution Service makes a decision as to what it is going to do. We are anxious to ensure that discontinuance is not, for example, used in the Crown Court as a way of getting an adjournment that would not be got under other circumstances, as in saying: “We don’t have enough evidence here. We need another three months to get it, so we’re going to discontinue and then restart”. That could create awful uncertainty, both for victims and defendants, as to what is going on. There are, for example, cases where somebody is a youth at the time they are charged and, if the case is then discontinued, they may then be tried as an adult later on.

I am not saying that I do not understand the problem or that this may not be part of the solution, but it needs to be considered carefully. What we plan to do is to consider this proposal further in the context of the wider court reforms and Sir Brian Leveson’s most recent report, with his recommendations for improving efficiency. I also welcome the expansion of the CPS pilot, strengthening victims’ voices before final decisions to offer no evidence are made. The outcome of that pilot will also inform our thinking. For the time being, I invite the noble Lord to withdraw his amendment.

[Lord Russell of Liverpool (CB)]

I thank the Minister very much for her response. I also thank the noble Baroness, Lady Brinton, for adding her name and for the examples she put forward. As I surmised, the Minister does indeed know what she is talking about—on a 24 hours a day, seven days a week basis, from what we have heard—and she is looking remarkably well on it.

I thank the Minister very much for the broadly positive way in which she has responded. I think she acknowledged, as we have all acknowledged, that there is an issue and an inconsistency here. But putting it right is not a matter of just snapping one’s fingers and changing one thing, because that has knock-on effects. I am hoping that the Minister will agree to have some follow-up discussions between now and Report, to see either what it will be possible to do by Report or what changes one can start instituting or committing to look at carefully, which can then be enacted later. But on that basis, I beg leave to withdraw the amendment.

Victims and Courts Bill

Debate between Lord Russell of Liverpool and Baroness Levitt

Committee stage
Monday 9th February 2026 Lords Chamber

[Baroness Levitt (Lab)]

I am grateful to the noble Baroness for raising this point. Our current position is that we do not believe that that is necessary, but I am happy to meet her and get her to try to persuade me why I am wrong and she is right—there is my challenge to the noble Baronesses, Lady Brinton and Lady Finlay.

[Lord Russell of Liverpool (CB)]

The FCDO has a duty of care and a responsibility for UK citizens when they are in whichever country. It does not seem too bizarre or extreme to hope that it would accept a degree of responsibility for the very small number of unfortunate victims who, for whatever reason, are unlawfully killed in the course of a year. For the FCDO to accept that that is part of its responsibility—a very small part, albeit an important one—and to prepare itself thoroughly enough to be able to fulfil that duty in a professional, proper and sensitive way in the unhappy event that it is required does not seem too much to ask.

[Baroness Levitt (Lab)]

The noble Lord, Lord Russell, puts it very persuasively and it is extremely tempting, particularly given that I do not speak for the FCDO, to say that it sounds utterly reasonable. However, I am sure he will understand why I cannot give that kind of commitment from the Dispatch Box, but I can commit to meeting and discussing this further.

Crime and Policing Bill

Debate between Lord Russell of Liverpool and Baroness Levitt

Committee stage
Tuesday 9th December 2025 Lords Chamber

[Baroness Levitt (Lab)]

I entirely understand the sentiments. I cannot commit to that today, but I will take the point away.

[Lord Russell of Liverpool (CB)]

I will give the Minister a little bit of context, because she has not been in this House very long, for which she is probably very grateful. Many of us speaking today were very involved in the genesis and ultimate passage of the Online Safety Act. That took six years to happen. When we passed that Act, we thought we were being crystal clear, in both Houses of Parliament, on what we intended to happen and what we intended the regulator to do. One of reasons why her ministerial colleague, the noble Lord, Lord Hanson, got a pretty hard time from this Committee on 27 November was that we felt there was a certain unwillingness to recognise the degree of frustration many of us feel about how the Online Safety Act is being enacted.

In particular, on 27 November, the noble Baroness, Lady Berger, told us that the Molly Rose Foundation has, in effect, given up on hoping that Ofcom will actually do its job, because Ofcom has told the foundation that its attitude and strategy in enacting the Online Safety Act, when dealing with the large platforms, is what it calls “tactical ambiguity”. If I were a lawyer for one of the large platforms, I would think that having a regulator that was applying tactical ambiguity was absolutely wonderful; it would be exactly what I would hope for. What we are looking for is action from His Majesty’s Government, and when it happens, we are not looking for any kind of ambiguity.

[Baroness Levitt (Lab)]

I have already said that I have heard, and indeed share, the anger and frustration in Committee. I may not have been in your Lordships’ House for that long, but I have not been living underneath a stone. Given my previous existence, I am acutely aware of these debates. What is obvious to us all is that, however well-intentioned past attempts have been, these things are still happening. If we want them to stop, we have to do something about them. I do not believe I can go further than I have at the moment; all I can say is that the will is there.