Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 40 - 59)



  40. Is this going to be in the form of a jury or individual—
  (Lord Irvine of Lairg) It is a good question. He does not answer that. As I say, although it is a very long document, it is a consultative document,—

  41. I am sorry to interrupt. This is a totally new departure, is it not?
  (Lord Irvine of Lairg) It is a wholly new concept.

  42. For juries to be virtually cross-examined?
  (Lord Irvine of Lairg) Oh no, not cross-examined. No, no, not cross-examined. They would have their issues summary and these would be agreed between prosecuting and defence counsel, with the approval of the judge, the list of the questions which it is necessary for the jury to answer in order to do justice to the case. That is of course exactly what juries ought to be doing anyway if they are trying the case properly. I have every reason to assume, and the confidence expressed by so many judges in jury verdicts supports the view, that that is precisely what they are doing. That is what the summing up tries to do in any event. It is to tell them what the questions are that they will have to address. This is simply to formalise it in a way which will make their lives easier.

  43. There is also a recommendation about allowing an appeal against what is described as a perverse jury verdict. Have you given consideration to that?
  (Lord Irvine of Lairg) Obviously I have read the whole report. It links in very closely to the point that we were discussing a moment or two ago. Auld has nailed his colours to a very simple proposition which may not appeal to you, I entirely appreciate. He has nailed his colours to the simple proposition that juries are sworn to give a true verdict according to the evidence, and if they do not give a true verdict according to the evidence and it is quite obvious that they have not done so and they have just been completely perverse, then the Court of Appeal should be able to correct them. That is what Auld says. What others would say is — it is always dangerous for me to mention the name of a case but it might be said about the Clive Ponting case, it might be said about acquittals of MS sufferers who take cannabis or whatever to ease their suffering, that if juries acquit, they ought to get a clap on the back and you should not be saying that these are perverse decisions. I understand the argument very strongly, but I am not going to commit myself to any government position in relation to whether we embrace his recommendation that a specific ground of appeal should be the perversity of the jury verdict because I can see how very controversial that would be. In a clear case where a jury was just saying no to a law that it did not like but Parliament had passed, that might be a clear case of perversity, but how you define perversity in the much broader range of cases I see very great difficulty with.

  44. People are bound to see that as undermining the jury system, but I have listened very carefully to what you have said, Lord Chancellor. It is also recommended—and perhaps this is less controversial—that in court cases there should be a way for the prosecution to give details of previous convictions at the beginning of the proceedings. There has been a lot of argument where people have been acquitted in certain controversial cases where, had it been known of their previous convictions, and usually it is plural and not necessarily so, the jury may have reached a different verdict. Are you sympathetic to the idea or is that a leading question?
  (Lord Irvine of Lairg) It is a leading question but you are well entitled to ask me leading questions. I sat myself as a recorder for many years in the crown court. I have witnessed exactly what you have described. Usually it is when the jury convicts. In fact, it could not really be otherwise. The jury convicts and it has taken a long time. This good honest jury has been away for a couple of hours, anxiously making up its mind, and comes back and convicts, and then hears that the defendant has got a list of previous convictions as long as your arm and you see them exchanging glances in the juror box, "Well, there you are: I told you so". On the one hand that makes the point that if the juries knew in advance they would be very influenced and maybe others would say prejudiced. At the other side of the argument you can say that it is a very poor prosecution case that has to rely on previous convictions to prove itself and that the risk of prejudice to a defendant is too great to allow previous convictions to go in. There are also in this area some very plain facts of life to be discussed. Very often defendants have previous convictions. Very often the prosecution witnesses who give evidence against them have previous convictions. Then both would go in and that in itself gives food for thought.

Angela Watkinson

  45. Lord Chancellor, what is your view of that other jury, the Crown Prosecution Service, which decides whether cases are allowed to go forward to court, and very often, in not allowing them, wastes very lengthy police investigations?
  (Lord Irvine of Lairg) First of all I think I would be quite clear. I know this is a huge cause of irritation to the police. The police are bound to be hugely irritated if they devote a large amount of time to a particular criminal investigation. They themselves would not have brought it up to the Crown Prosecution Service unless they were pretty jolly sure that the defendant was guilty, and then they find that the Crown Prosecution Service disagrees with them and the prosecution does not take place. I have got to say that I am on the side of the present distribution of responsibilities here. I do think that it is the duty of the Crown Prosecution Service to assess a case that the police bring forward and to decide whether it is fit to go for trial. Otherwise the Crown Prosecution has to decide whether there is a sufficient likelihood of a conviction being secured to merit all the time and effort and, yes, cost of perhaps a very long criminal trial. Of course, when criminal trials collapse for want of evidence, there is nobody who is slow to criticise the Crown Prosecution Service for bringing forward a case that was not strong enough: why were they doing this? Also, of course, the long history of miscarriage of justice cases in this country, proven miscarriages of justice cases, is a cautionary example to the Crown Prosecution Service to exercise its discretion. There are figures on this. As we know in relation to crimes recorded, only about 24 out of 100 are cleared up, and that is no criticism of anyone. It is probably by international standards quite a good record. Of these 24 the police take action in 19 and then four out of the 19 are not taken further by the Crown Prosecution Service. I do know that the four out of the 19 if you like will cause a lot of irritation to the police but I do think that the reasons are on balance justifiable.


  46. Do you think we should be putting cases to the courts on the basis solely of evidence from serial perjurers?
  (Lord Irvine of Lairg) You must have a particular case in mind.

  47. I have a number in mind actually, yes. The one that comes to my mind, which is a proven miscarriage of justice so I guess we are allowed to mention, is the Carl Bridgwater case where in a truly astonishing judgment the Court of Appeal upheld convictions, saying, "We accept that witness so-and-so is a pathological liar but on this occasion we believe he was a witness of truth." How is it possible for a rational human being to engage with that kind of argument?
  (Lord Irvine of Lairg) I had better over this weekend read that judgment and see how it impresses itself on me, but I can see the difficulty.

Bob Russell

  48. If I can take you back, Lord Chancellor, I believe that in referring to the court security service you said they would be people wearing uniforms. Have I heard you correctly? You said they would be police in all but name or words to that effect.
  (Lord Irvine of Lairg) I did in fact use an expression like that, but perhaps it was inaccurate. Basically, any court security service, to be the equivalent of the police, would have to have the powers to arrest and detain of police constables and would have to be trained to the level to be worthy of having these powers.

  49. The reason I ask that question is that the former Home Secretary is on record as saying he is opposed to privatising the police force and I would hope that you would also echo that statement, that this would not be a privatised police force within the courts.
  (Lord Irvine of Lairg) Let me say right away, because this arose out of comments that I made following from Lord Justice Auld, that by far the preferable course would be to have a sufficient police presence at courts as a matter of routine. There is not an inch of difference between us on that. But just so as to tell you about the problems about court security very shortly, the responsibility is fractured. It is the responsibility of the Prison Service to bring the prisoner to court. The Prison Service retains the responsibility for the dock, so the Prison Service, very often in the shape of Securicor or whatever, are responsible for the dock. The well of the court is the responsibility of the court service. The whole rest of the court and the public parts are the responsibility of the court service, and what there are are fractured arrangements, sometimes that do not even merit the word "arrangements", up and down the country for some kind of police cover in courts. The present state of affairs is therefore troubling and improvement is urgently required and I think everybody recognises that. I am looking into that in my own department but there are other departments which are engaged and the Home Secretary and I have discussed together this problem in more or less the terms that I have just discussed it with you and we both agree that this state of affairs has got to be addressed and has got to be improved. My preference certainly would be for a disciplined and uniform and uniformed police presence in courts, but if that cannot be secured, because we have to recognise the burdens that there are on the police force up and down the country, if they really cannot do it and they really do not want to do it, then of course we have to look at alternatives because court security is absolutely vital. Escapes from the dock, attacks upon judges and escapes sometimes of dangerous criminals from the precincts of the courts—they are usually recovered of course—cannot be tolerated.

Mr Cameron

  50. Lord Chancellor, can I take you back briefly to the Crown Prosecution Service? Most people would agree that the good part of the creation of the Crown Prosecution Service was to have an independent authority deciding whether to prosecute. The disadvantage in many people's eyes is that you (or we or whoever it was who did it); I do not believe it was the Conservatives who created something of a monopoly in terms of the decisions taken about prosecution. It does not exactly mean that you attract the brightest legal brains into the CPS. Are you not in danger of repeating the same mistake with the Criminal Defence Service, the planned-for service? I wonder if you could say a few words about how far you see the Criminal Defence Service going in the direction of salaried public defenders.
  (Lord Irvine of Lairg) I will certainly come to that, but let me just respond to what you said about the Crown Prosecution Service. I think it is very important that the Crown Prosecution Service be properly funded. We addressed that when we engaged in our last spending round, and both I and the then Home Secretary agreed that out of the special fund that there was a joint pot, of £525 million over three years, which is of course available to the Home Office, the Crown Prosecution Service and the Lord Chancellor's Department, I think the Attorney General would be the first to agree (or his predecessor) that we made a very generous allocation to the Crown Prosecution Service, recognising that it was under-funded. Secondly, we have cured a historic anomaly that Crown Prosecution lawyers were being paid less than defence lawyers, and so there is now equality of reward broadly speaking between the rewards that counsel get for defending and the rewards that counsel get for prosecuting. Both of these points are relevant to getting proper quality into the Crown Prosecution Service. As far as the Criminal Defence Service is concerned, this is an experiment. It is an experiment only. If public defenders do not bring benefits to the system then we will not continue with them. The extent to which this has gone is very, very minor so far. Public defender service offices have opened in Liverpool, Middlesbrough, Swansea and Birmingham, the first three in May, the second in July. Just to give you the scale of it, Liverpool has 127 clients, Middlesbrough 60, Swansea 167 and Birmingham 23. We are going to be opening one other office shortly. You have six public defender offices with a tiny number of clients and this compares with over 2,800 private contracted solicitors who offer criminal defence services. What I am saying is it is very, very small and it is experimental.

  51. What sort of benefits are you trying to get out of it? If you are nervous and saying it is an experiment what are the benefits?
  (Lord Irvine of Lairg) I am not nervous in saying it is an experiment, but it is an experiment worth conducting because we hope it will provide a high quality service. No defendant is going to be compelled to go to a public defender office, he is going to have a choice. These public defender offices will either succeed or fail on their own merit, they will be properly assessed in terms of value-for-money. Everything that I have said in the course of the passage of the Access to Justice Bill showed a clear awareness and acceptance on my part that this was purely an experiment.

  52. I am not quite clear about what problem you are aiming to get over. The CPS had to be created because you needed independent prosecution decisions. What you lost was a sort of market in solicitors, with the police knowing who to choose and who was good. What you have now if you are a defendant is that your solicitor can choose any barrister, so there is a market, as it were.
  (Lord Irvine of Lairg) That is still so.

  53. Absolutely. What is the problem that these paid public defender offices are trying to cure?
  (Lord Irvine of Lairg) One is trying to test out a higher standard of provision and one that gives greater satisfaction to the user that can be delivered other than by private means. Also in parts of the country, not many, admittedly, where there are problems of supply of criminal defence services these offices can supplement shortages in supply. Why I think there is nothing to fear is because the market will determine it.

  54. Thank you.
  (Lord Irvine of Lairg) There is no compulsion to go to them.

  Chairman: Can we turn to access to justice.

Mr Watson

  55. Lord Chancellor, there has obviously been a number of court challenges to the Act, what steps is the Department taking to monitor and research the impact of removing areas of law from legal aid?
  (Lord Irvine of Lairg) I think the best evidence is whether you get complaints. Everything that I have heard about conditional fee agreements is favourable. I have not had a single—I shudder to tell you how large my mail bag is—letter from anyone telling me that they have been dissatisfied with a particular conditional fee agreement or the conditional fee agreement terms that they were offered. The MPs in this room will know whether they have either. It is pretty remarkable, I ask my own ministers, and so on, and neither have they. What I am really saying is the proof of the pudding is in the eating. It is also a favourable regime to plaintiffs, it is a favourable one. If they do not win they pay nothing, if they win they recover their costs and the costs of insuring against the risk of loss is recovered from the other side. It is a very, very favourable regime. It is not surprising, of course, that the insurers industry have been testing in court the effectiveness of the provisions that the successful plaintiff is entitled to recover, the success fee and the cost of the precautionary insurance fee. So far the courts have upheld the statutory system, subject to a wrinkle in a recent case, about where there was an antecedent insurance policy, antecedent that is to the new insurance policy that was taken out to cover the risk of the new action. On the whole I think that the CFA regime is working well, I am not aware that the Law Society is in receipt of complaints about it. We have been studious, of course, not to withdraw legal aid from clinical negligence claims and we do not have any present plans to do so, although I do believe that conditional fee agreements are, to an extent, being used there in the medical negligence area also by plaintiffs, which does really testify to the proposition, which I always thought was true, that conditional fee agreements would prove good business for lawyers.

  56. Perhaps I can amplify a complaint from a group of membership organisations, I am particularly thinking of trade unions, currently the provision discriminates against them because they can only recover the cost of providing against the risk of paying the costs of the other side but they cannot reclaim the disbursements because commercial organisations have arrangements to do that. Have you any plans to change the costs structure to enable that to happen?
  (Lord Irvine of Lairg) That is a very detailed question. First of all, I remember when the Access to Justice Bill was going through we provided for recovery from the defendant of the amount of the uplift which the solicitor was going to charge, the uplift of his costs and the insurance premium, so that the plaintiff could recover it from the defendant's employer typically. It was then drawn to our attention that trade unions ran big personal injuries businesses through their solicitors and how were they going to benefit from these provisions. We saw the justice of them benefiting from these provisions and there are particular provisions in the Access to Justice Bill, for which I remember being praised by the trade unions at the time, which allowed them to benefit from the recovery. I have never received a letter from any trade union or the TUC on the point that you have raised with me. I will see if I understand it, if the trade union member wins the case then he recovers his costs from the other side and if he wins he recovers the disbursements, the medical expenses, the lawyers fees and he will recover his damages and everything else, so no problem if he wins in a trade union case. What I think you are saying to me is if the trade union loses the case on his behalf, the trade union, because it is really the trade union, not the member, is protected against the defendant's employer costs and recovers them under the insurance policy but the insurance policy does not extend to protecting against the disbursements, or if it does the recovery against the defendant does not include the disbursements. I think that is what you are saying.

  57. That is what I am trying to say. Currently that puts trade unions at a disadvantage to other commercial organisations and clearly that is a huge part of their service to their members. What I am saying to you is, is there is an anomaly, have you any plans to try and iron it out?
  (Lord Irvine of Lairg) If you tell John Monks to write to me about it and set it out in detail I will certainly look at it. Some people might say that the trade unions actually deserve a huge clap on the back because they ran what was really a conditional fee arrangement for their members for years and years and years and years successfully, with the profits they made from the winners subsidising the losses they made on the losers. The truth is that what I have already done in the Access to Justice Bill has made their position stronger than it was before when they were running, if you like, a successful personal injury business on behalf of their members. I will certainly look at that point. If you write to me I will certainly ask my officials to look at it on the basis of our exchange. I would be very interested to hear from the legal office of the TUC what their experience on this sort of point is.


  58. I think we can help, we have been told by the Amalgamated Engineering and Electrical Union it has cost them £850,000 so far.
  (Lord Irvine of Lairg) What?

  59. It has cost them £850,000 so far. We have a note from the Director of Legal Services.
  (Lord Irvine of Lairg) That is in disbursements incurred by them in cases which they have lost. Their insurance cover has got to cover the disbursements. I do not want to be drawn into an unsympathetic remark.

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