Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 100-119)

Thursday 22 May 2003

LORD FALCONER OF THOROTON

Q100  Baroness Whitaker: Does that not make a huge inroad in the right to liberty really?

Lord Falconer of Thoroton: I do not think so. Everybody accepts that in Convention terms the purpose of remands is to stop reoffending or stop people not turning up. There is a balance that has got to struck that makes the court system work effectively.

Q101  Baroness Whitaker: The balance has gone the other way, you would say, against liberty in this provision?

Lord Falconer of Thoroton: For legitimate reasons, we would say.

Q102  Mr Chidgey: Minister, can I turn to the amending of the Police and Criminal Evidence Act 1984 which contains a requirement for a full record to be kept of the property and possessions of a person attending at a police station. You will, of course, be aware that the Committee was concerned about the impact of this on the safeguards of the right to peaceful enjoyment of possessions under Article 1 and also the risk that other police officers might be subject to allegations of theft or damage to the property. Specifically, can you tell us why the Government is not yet prepared to commit itself to including in the Bill appropriate procedural and record-keeping safeguards to protect the property rights of people in police custody against loss or damage to property caused by other detainees or police officers, and to guard against the risk of false accusations of theft or criminal damage being made by the detainees against police officers or other detainees?

Lord Falconer of Thoroton: There is a balance to be struck between unnecessary record-keeping where it is utterly obvious that there is a moderately large number of items of little financial value and obviously of no significance in relation to a case, and to require police officers to make long lists of those may well, in a number of cases, not be necessary. I recognise fully that there will be significant cases where proper records have to be kept, either because the goods are of value or because they are of significance to the defendant or because they may have some evidential value in the sense it may have real significance for what the defendant was carrying. The balance that has got to be struck is in making sure that there are proper records kept in those cases but, on the other hand, not requiring long lists that are never looked and are obviously of no significance. Is it right to try and strike that balance on the face of the Bill or is it right to deal with that by guidance? We take the view that the right way to deal with that is by guidance. That guidance will be able to strike the sorts of balance that I have indicated. Plainly, if that guidance is not complied with, that would give every basis, one would have thought, for a complaint against the relevant police officer.

Q103  Mr Chidgey: Obviously the Government does consider that the removal of record-keeping requirements leaves in place safeguards for property rights under Article 1 for people detained in police stations, but can you be more specific what those safeguards would be, other than guidance?

Lord Falconer of Thoroton: The safeguards would come in the guidance obviously. They would be things such as the sort of things I have indicated. Plainly you should always record items of value, you should always record items that could be of evidential significance, you should always use sealable bags sealed in the presence of the defendant, but the difficulty is when it is appropriate to go through those steps where on the other hand is it obvious that the precise recording of every single item is really not an appropriate way forward, so striking a balance will have to be done in the guidance, I think.

Q104  Vera Baird: Can I press one more point in that connection. There is capable of being a kind of property which is not obviously significant to a case but which might become significant as the defence develops or as the prosecution develops. Granted that the man making the list in the police station at the beginning cannot easily make those judgments because the custody sergeant would not be an officer involved in the case at all, he would not have any idea of what the evidence in the case is going to be, that is the whole point of keeping him independent of the investigation. So how can we protect people against the danger that no record is kept and then the contents of their possessions when they were arrested does become of high significance in their trial?

Lord Falconer of Thoroton: In very many cases, and I take your point about the custody sergeant who is separate from the case, the material obviously will not be relevant. You are right that there are cases—and I suspect they are quite rare—where what did not look remotely relevant at the time then becomes relevant subsequently, but I say the test should be "it is obviously not relevant, therefore there is no need to keep a list", rather than "does it seem relevant, only then take a list".

Q105  Vera Baird: If the defendant says to the custody officer, "This might be relevant to me later on, will you keep a list?" is that going to be in the guidance?

Lord Falconer of Thoroton: If the defendant is asserting this is relevant then I would have thought it would be very, very hard in those circumstances to justify not keeping a list.

Q106  Vera Baird: Will you put that in the guidance, that the defendant will have a right to say, "I want to have this kept because I think some of this is going to be relevant later"?

Lord Falconer of Thoroton: I am very wary of trying to draft guidance on the hoof but where a defendant asserts that it is relevant it seems to me in those circumstances it would be appropriate to make a list.

Q107  Vera Baird: One final point, clearly because he has the right to keep his powder dry about how he is going to present his case later he will be entitled to say, "I regard this as likely to be relevant to my case", without the requirement of any explanation at the time?

Lord Falconer of Thoroton: The thought that was going through my mind is what happens where there is an assertion that you could see no possible justification for, and I do not know how one would deal with that in the guidance, I need to think about that.

Q108  Vera Baird: Your balance is between your rule being a waste of time because the defendant will always ask for it to be kept—

Lord Falconer of Thoroton: —Exactly.

Q109  Vera Baird: —And on the other hand, the defendant being forced to show his hand about his defence when it is at the very early stages of his arrest by explaining its potential relevance? That is the balance, is it not?

Lord Falconer of Thoroton: What happens where you are charged with an assault outside a pub and you are carrying 500 files from your law practice, do you have to list every single one of the files when it is pretty obvious that it was just after a heavy week at work that the assault occurred?

Q110  Vera Baird: You are picking an example where it is probably quite unlikely that it would be relevant.

Lord Falconer of Thoroton: But the lawyer says list all these.

Q111  Vera Baird: There are a few cases in which quite late in the day it becomes clear that what is on the custody record is going to determine a major part of the evidence.

Lord Falconer of Thoroton: I recognise that, I accept that.

Q112  Vera Baird: I think you said before that you did, but I am not sure how that eventuality can be catered for and are you really trying to save time for the police in this position? Is there not a compromise which would allow all the property to be put in a big plastic bag as a matter of course and sealed by the defendant and custody sergeant and then at some later stage a much more menial person could make a list, if it is required at all? If he is released and there is no charge to follow, no-one will want it kept, but if he is going to be charged, in order to protect against that eventuality, is it not prudent to that?

Lord Falconer of Thoroton: Sometimes that is possible, sometimes it is not. As you rightly point out, one of the problems in this area is that very often no charges follow after the arrest and then the material is all handed back. One needs to try and deal with all of those eventualities. I see the force of the single plastic bag—

Q113  Vera Baird: They will get it back because nobody cares any longer.

Lord Falconer of Thoroton: One needs to look at that and one needs to see how that can be dealt with in the guidance. I cannot commit myself at the moment but I see the force of what you are saying.

Q114  Chairman: There are some circumstances in which an old bus ticket might turn out to be very relevant in a case. Is the Government doing this because the police have asked you to, is it about cutting down bureaucracy?

Lord Falconer of Thoroton: The Government have obviously made a judgment about it, the police have pressed us to try to reduce bureaucracy in a number of areas. One of the areas mentioned is the fact that a lot of listing goes on in respect of property over which there is no issue and which has no significance subsequently.

Q115  Lord Bowness: The new clause 46 on page 1467 concerns the amendments to the Firearms Act and minimum sentences. It imposes minimum sentences of five and three years depending on the age of the offender and sub-clause 2 says that is to be imposed unless "the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so." We are advised about the case of R. V Offen where the Court of Appeal considered that it could discharge its responsibility under the Human Rights Act by taking a view about the meaning of "exceptional circumstances" to justify not imposing a life sentence. It took into account the degree of continuing risk that the offender posed, and because the repeat offender did not pose a risk, it was treated as an exceptional circumstances to justify not imposing a life sentence. What circumstances do the Government envisage as amounting to exceptional circumstances, with the exception of the Offen case, which would enable the courts to impose lesser sentences, both with regard to circumstances relating to the offence and indeed to the offender?

Lord Falconer of Thoroton: It is for the courts obviously to construe what is meant by "exceptional circumstances". We would not necessarily accept that the offence in the Offen case would lead to the same conclusion in relation to firearms offences. We are keen by the way we have drafted it to do the following: to send the clearest possible message that if you have a firearm you will get the minimum of five or three years. The sorts of exceptional circumstances we have in mind are in relation to the offence, for example, where it is perfectly clear that what has happened is there has been an administrative failure to renew a firearms' licence. In relation to the offender we would envisage circumstances, for example, where a firearm covered by the Act was found, for example, in the property of somebody who had died and it was then in the possession of somebody who had inherited it. You would not envisage those circumstances to lead to five years. Those are exceptional in our view. We do not think by putting in "exceptional" in this particular provision that the effect is you have got to be sure that the defendant is a danger before you pass the five-year sentence because we think what we are really saying, save for the sort of exceptional circumstance I have identified, which covers both an offender and offence, that you assume it is dangerous, and that is the message that has got to go out.

Q116  Lord Bowness: But does that not lead to difficulties about fair trials if courts are bound in that way?

Lord Falconer of Thoroton: The effect of the "exceptional" clause means there is some degree of discretion. What the courts are doing as a result of minimum sentences is imposing sentences that they would not otherwise impose on that particular defendant and the courts have accepted that is the approach that comes from minimum sentences. In a sense, that is the desired effect of minimum sentences.

Q117  Chairman: Minister, if we may now turn to the amendments which relate to a minimum period of imprisonment to be served by people convicted of murder and of course the new clauses are designed to remove the incompatibility of section 29 of the Crime (Sentences) Act 1997 under which the Secretary of State was ultimately responsible for setting a minimum period. Obviously it would seem to us that by removing these incompatibilities the Government is keen to limit the discretion of judges in setting minimum terms and to make Parliament responsible for setting the guiding principles. Of course, it is very important to set that against the necessity for courts to preserve their independence from the executive and of the legislature, and to set a minimum period of imprisonment which is relevant not only in terms of taking account of all the circumstances but relevant to the defendant and the circumstances of the offence. The Home Secretary, on the other hand, has let it be known that he anticipates that the statutory starting point produces higher minimum sentences in some cases than would have been imposed by him on advice from judges. So what effect does the Government intend these provisions to have?

Lord Falconer of Thoroton: In human rights terms it is for the courts to exercise their discretion as far as individual cases are concerned, and we have very little doubt that the effect of these guidelines does that. It provides starting points, it indicates what should be mitigating or aggravating circumstances, but it is absolutely plain that it leaves it, in the context of those guidelines, to the judges to identify in each individual case what the sentence should be. We take the view that it is perfectly appropriate for Parliament to identify a broad framework for sentencing and, indeed, we think that is what Parliament always does in relation to particular crimes because normally the way that a sentence would be set would be by Parliament setting a maximum, which indicates how seriously they regard a particular crime. So, for example, we have also amended the Bill at report stage to increase the maximum for death by dangerous driving from 10 to 14 years. The plain purpose of that is to signal to the judiciary that we think it is perhaps more serious than a ten-year maximum would otherwise imply. Similarly, in relation to murder, which covers a whole myriad of circumstances, it is perfectly legitimate for Parliament to signal what they think the sorts of levels of sentence would be, but we recognise it must be done in such a way that the judges have discretion and they operate independently in determining each individual case. There are cases plainly where it may well lead to higher individual sentences than currently. One example, though it is very difficult to determine whether it will in fact occur because the comparator is with how the Home Secretary was setting tariffs before, is whole life tariffs, which were quite rarely set before and, indeed, the Lord Chief Justice Practice Direction, which was published I think last year, does not specifically refer to whole life tariffs. The guidelines do refer in exceptional cases to whole life tariffs. That will probably lead to more whole life tariffs than previously, although if one looks at the tariffs the Home Secretary was setting before the Anderson case there were examples of whole life tariffs or tariffs that had that equivalent where, for example, a 50-year tariff was set on people where that would mean, in effect, they were very likely to spend the rest of their lives in prison. There is nothing objectionable, just as there is nothing objectionable in an increase in the maximum for death by dangerous driving, in the legislature setting the framework so long as the judges have sufficient discretion, which I am quite sure they do here.

Q118  Chairman: I think there is no dispute that death by dangerous driving has been an issue which has been of great concern to parliamentarians for a very long time. I have certainly had constituency cases where that is an issue. What would the effect of this be on battered women who killed their husbands, about which many of us have very great concern because we do not feel the criminal justice system takes this issue seriously. Would those women not face an automatic 15-year sentence?

Lord Falconer of Thoroton: Not automatic. Interestingly enough, in relation to mitigating circumstances there is absolutely no doubt on the facts of the individual case of your sort of example that a defendant who has been physically victimised over a long period of time is plainly and explicitly something taken into account in the mitigating circumstances.

Q119  Vera Baird: You would not envisage that that is a target group in any way, the Government does not intend that the current level of tariffs for battered women who kill ought to get higher?

Lord Falconer of Thoroton: I slightly pause because I do not know adequately what the average rate is in relation to those women.


 
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