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Noble Lords: Buffer!

Lord Hunt of Wirral: A similar mishearing came from the Lord Chief Justice who I thought was congratulating the noble Baroness on her probation. But he quickly recovered himself to refer to her promotion, which I am sure is what he said.

My tribute to the noble Baroness is reinforced by the fact that she has remained in the Chamber throughout every speech. That is much appreciated.

We have a Criminal Justice Bill which leaves few areas of criminal evidence, procedure and sentencing untouched. The Bill has 307 clauses and 32 schedules, totalling 374 pages. We can well understand why the noble and learned Lord, Lord Donaldson, first referred to it as a monstrous Bill. It is certainly a monumental Bill, as he quickly recovered himself to express.

Although the Bill is one of the most prominent and controversial of the Government's reforms, I think it is a matter of considerable regret that this Chamber should be debating it for the first time on 16th June. There is a huge amount of work to do, yet the Bill has arrived so late in the parliamentary year. In fact, the Government added 34 clauses and six schedules, as my noble and learned friend Lord Mayhew, pointed out, at Report stage in the House of Commons. Several of those clauses were not even debated in another place. The first opportunity to scrutinise them will be in this Chamber and we are told that there is more to come.

As the noble and learned Lord, Lord Ackner, pointed out, there are two volumes of the Bill and 14 parts. I agree with those noble Lords who said that many of us have curtailed our comments to fit in to a one-day debate. How much better it would have been if we had had a two-day debate. There is certainly enough material here to justify that.

The noble and learned Lord, Lord Falconer, sped through the Bill. The noble Baroness, Lady Mallalieu, estimated that he had covered 26 clauses a minute. He had time to outline only the details. He had no time to explain why the provisions were being introduced, to give arguments in favour of each proposal, to outline what the objectives were and to say what the Government believe will be the overall impact of the measures. The noble Lord, Lord Brennan, made a very

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important point when he asked what the effect of the Bill would be on the size of the prison population. We are still awaiting the answer to that question.

After 12 criminal justice Bills from the Government, this massive new Bill must be an admission of failure. But we broadly welcome many of the reforms. I would not go so far as to accuse the Government, as the noble Baroness, Lady Kennedy of The Shaws, did, of having a drunken romance with modernisation or to describe it as a disgraceful assault on civil liberties. I leave the noble Baroness to justify those comments. But it was right of the noble Lord, Lord Dholakia, to remind us that the report from the Joint Committee on Human Rights, published only last Friday, says that the Bill being introduced to this House is,

    "far larger and more far reaching"

than that originally introduced in another place. The report also says that,

    "the range of human rights issues is considerably wider",

and concludes that,

    "there are risks of violations of human rights",

in relation to eight separate matters. These will require very careful consideration in Committee.

Serious concerns have been raised on important matters of principle. I should like to deal with sentencing in particular. The noble and learned Lord, Lord Ackner, in a convincing defence of the present system, can always be relied upon to find the most appropriate extracts from Government White Papers. He demonstrated the concern felt on all sides of the House at the concentration of powers in the Home Office. However, since the noble and learned Lord, the Lord Chancellor, spoke, my noble friend Lady Anelay, in an outstanding contribution, suggested a way forward in sentencing that has been endorsed in a vitally important speech from the noble and learned Lord, Lord Woolf, the Lord Chief Justice. They suggested that the members of the Sentencing Guidelines Council should be drawn only from the judiciary and their recommendations should be scrutinised by a Joint Select Committee of both Houses. That would strike the right balance between democratic accountability and the independence of the judiciary. The noble Lord, Lord Chan, reminded us of the importance of the separate and independent Sentencing Advisory Panel on which he serves with such distinction.

As the noble Lord, Lord Dholakia, pointed out, and as my noble and learned friend Lord Mayhew referred to, the noble and learned Lord the Lord Chief Justice has placed in the Library a valuable supplementary note fleshing out the arguments put forward in his speech that was a devastating critique of the Government's proposals. My noble and learned friend Lord Mayhew drew attention to paragraph 56, referring to the new figures:

    "the new figures were not based on any advice from the Sentencing Advisory Panel. They were not the subject of any public consultation.".

There is much more in the document that we need to scrutinise and we shall ensure that in Committee every one of the points raised in the paper is properly dealt

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with. Importantly, the noble and learned Lord the Lord Chief Justice was speaking not only on his own behalf, but those views were supported without dissent at the meeting of the Lord Justices who preside in the Court of Appeal Criminal Division.

In the meantime, I hope that the Government will think again about their proposals. The noble and learned Lord, Lord Donaldson, reminded us that there must be no misunderstanding of the position of the judiciary. He said in his important contribution that judges are not mere bean counters. I recall that I put to the noble Baroness on a previous occasion a quotation from the noble and learned Lord, Lord Irvine of Lairg, the previous Lord Chancellor, who said:

    "To put legislative strait-jackets on the judge's discretion to sentence for serious crimes is almost always a mistake".

Sadly, that is a mistake that the Government appear to be making. We are grateful to the noble and learned Lord, Lord Woolf, for his intervention. We accept his suggestion that this House should be the arbiter of the arguments being put forward.

We have also had an interesting debate on the purpose of punishment. I do not wish to blight the career of the noble Lord, Lord Mackenzie of Framwellgate, but I have heard speeches similar his being cheered to the rafters at Conservative Party conferences. I confess that I agreed more with the arguments of my noble friend Lord Carlisle of Bucklow. The chance of rehabilitation or reform must be one of the main aims. The noble Baroness, Lady Linklater of Butterstone, was right to stress the need for an enormous increase in money and resources for the magistrates and the Probation Service. As well as her powerful plea for compassion, the noble Baroness made an important contribution on the way that we treat children—as did the noble Baroness, Lady Massey of Darwen, when she referred to Article 37(b) of the UN Convention. The right reverend Prelate the Bishop of Blackburn also reminded us that we needed a fundamental re-examination of the purpose of punishment. I agree with him that we need to make the balance right. For example, the THOMAS project would not succeed if the participants were only involved through coercion and compulsion.

My noble friend Lord Windlesham mentioned the vital importance of victim support. I hope that the Government will look again at a policy which he warned would otherwise sweep victim support out of the courts. We had interesting contributions from the noble Lord, Lord Adebowale, with all his experience in Turning Point, pointing out the need for co-ordinated services as people leave the criminal justice system. The noble Lord, Lord Dholakia, has much experience with the National Association for the Care and Resettlement of Offenders. I think that he has been on the council and the chairman for almost 20 years. He reminded us of some of the vital issues in that respect.

I should like to conclude by referring to the very important debate on trial by jury. Many speakers from all sides of the House have been united in their wish to oppose the provisions on jury trial. I do hope that the noble and learned Lord the Lord Chancellor and his

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colleagues will think again. The noble Lord, Lord Brennan, reminded us of the importance of jury trial in our participatory democracy. The noble Baroness, Lady Mallalieu, with a degree of support from all sides, said that juries do get it right. The independence of a jury's verdict has been established for 800 years, certainly since the Bushel's case in 1670.

In this debate there have been many strong advocates of jury trial and some very valuable evidence that people overwhelming trust juries as part of a representative justice system. The noble Baroness, Lady Gibson of Market Rasen, gave us some valuable evidence in that direction. The noble Baroness, Lady Mallalieu, also reminded us that there is no popular pressure to restrict jury trial as the Government intend.

The noble and learned Lord the Lord Chancellor said that jury trial would be a central principle of our system. That may be so, but we are all very concerned, as my noble friend Lady Seccombe pointed out, that the Bill makes serious inroads into that principle. The House is right to be suspicious of the Government's intentions. On several previous occasions, as noble Lords have reminded us, the Government have brought forward measures to remove jury trial for less serious offences. Defeated on those occasions, they have now done a complete about-turn and wish to abolish jury trial for some serious cases. Many noble Lords have explained why that is wrong even if there is a risk of jury tampering. I say to the noble Lord, Lord Harris of Haringey, that although his concern over cost was understood, I believe that most noble Lords feel that the 9 million to which he referred was money very well spent.

My noble friend Lord Renton brings to the debate 50 years as a Queen's Counsel—more even than the noble and learned Lord, Lord Ackner, who, having had only 43 years as a QC, pales into insignificance. I say to my noble friend that I hope he will reflect on his view that jury trials are inappropriate if the trial is to last more than two weeks. I also think that his point on special juries is quite a dangerous road down which we might go.

The Government have made a virtue of sweeping away centuries of tradition and history. I believe that they incur the wrath of this House and of the majority of British people when they seek to sweep away long-established civil liberties. Many have pointed out that the prison population has now increased to more than 70,000. Five years after the Prime Minister said that he would be tough on crime, a crime is now committed every five seconds. Common sense demands that surely the right way ahead, as the noble Baroness, Lady Howells of St Davids, reminded us, is to increase the chances of detection and proper detection. Removing basic human rights is not the answer.

Last year the Prime Minister said that our criminal justice systems seemed,

    "cumbersome, out of date and therefore often ineffectual in convicting the guilty".

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How interesting that he did not use the phrase "allegedly guilty". It is up to this House to remind the Government that the accused is still presumed innocent.

This debate has shown a quite necessary and proper desire to protect at all costs the civil liberties of the innocent. Like my fellow solicitor, the noble Lord, Lord Clinton-Davis, I want to see a Bill that is firm and fair. The noble Lord, Lord Ahmed, reminded us how important it is that the criminal justice system represents every member of the public. So if we are to retain public confidence in the criminal justice system, then we must ensure that the system ensures justice, reason and humanity, as put forward by the noble Lord, Lord Brennan. Tough on crime, yes; but rough on justice, no.

10.40 p.m.

Baroness Scotland of Asthal: My Lords, I rise with great pleasure to respond to the very exciting debate that we have had on the Bill. I thank all noble Lords who have given both myself and my noble and learned friend the Lord Chancellor compliments about our new appointments.

I also take this opportunity to endorse every word in relation to the compliments that were paid to my noble and learned friend Lord Irvine of Lairg. We shall see his thumbprint indelibly on the British constitution and on justice for many years to come. This House and this country have much to thank him for.

The baton that he had has now passed to my noble and learned friend Lord Falconer. A strange thing happens with batons. They are passed on in their turn, and therefore my noble and learned friend has passed his baton on to me. Having passed it on, he lets the next person in the relay run on her own.

There have been many injunctions given by many noble Lords. The noble Lord, Lord Clinton-Davis, says that the law has to be firm but fair. My noble friend Lord Brennan reminds us that any reform has to take place within reason, justice and importantly humanity. My noble friend Lady Mallalieu also underscores the importance of not allowing the scales of justice to tilt against the innocent in a way that is unjust. It is right and proper that the right reverend Prelate the Bishop of Blackburn, with his usual prescience, reminds us that while hating the sin there has to be room for loving the sinner.

All those injunctions are borne in mind by the Government. They are not intemperate in the way in which they move forward, as indeed the debate has not been intemperate. All noble Lords have addressed their minds with great seriousness to the important issues with which we deal. We have had a wide-ranging and fascinating debate. It presages a thorough scrutiny in the months to come. If anyone believes that this House will not do its duty he or she will be gravely mistaken. Virtually every noble Lord who has spoken had the joy of sharing with me the Courts Bill so I see many old friends on the Benches.

I am sure that noble Lords will know that having taken up this baton only recently, it would be inappropriate for me to seek to address each and every

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nuance that will doubtless delight us through the many days in Committee. We have now had six hours of debate and the noble Lord, Lord Hunt, is right to say that I have listened to virtually every single word. The Government, as my noble and learned friend the Lord Chancellor has said, will continue to listen to what the House has to say.

I genuinely look forward to the challenge of working with noble Lords through the detail of the Bill in Committee and responding to points made in relation to it. The thirst for reform within the bounds of reason, justice and humanity is very much shared by my right honourable friend the Home Secretary. The goal is the same, although the route may differ. We shall listen and explore the provisions and seek to chart the fairest and most balanced course. Therefore, I welcome the warm support that I received from my noble friend Lord Harris, the noble Lord, Lord Renton, and my noble friend Lady Gibson among many others. The noble Baroness, Lady Anelay, was gracious enough to outline her support in many areas. I would say to the noble Lord, Lord Renton, do not sup too closely with the noble Lord, Lord Hunt. Independence of view is still very much valued.

The debate has therefore confirmed that there is support for many of the Bill's provisions, and that in other areas there may be scope to reach agreement. We are very willing to explore that end. This can be seen as a valiant attempt to improve the criminal procedure as expressed by the noble Lord, Lord Renton. It is a Herculean task, and my right honourable friend the Secretary of State understands the nature of that task. No one has suggested that our current system is without flaw and complexity; the contrary is indeed true. The noble and learned Lord the Lord Chief Justice spoke powerfully about that complexity. We must bear in mind that the changes we propose seek to ensure that adequate safeguards are in place in respect of the proposed amendments of PACE relating to detention and detainees' property safeguards. We shall bring forward amendments to Clause 9 to retain the affirmative resolution procedure for the new PACE codes and the significant revision of existing PACE codes.

My noble friend Lord Ahmed and my noble friend Lady Howells, whom I specifically thank for her warm compliment, have voiced their concerns that the stop and search provisions in Clause 1 and the provision at Clause 284 for the detention of terrorists will have disproportionate impact on minorities, ethnic communities and Muslims. The impact of stop and search more generally on minority ethnic communities is being addressed by a draft revised code A, including recommendation 61 from the Stephen Lawrence report which is being phased in in selected sites to discover how it may best work. Safeguards are also built into the Terrorism Act that will apply to the amendment in Clause 284. The Government have agreed with the CRE to undertake race relations impact assessments of key provisions of the Bill while it is still in your Lordships' House and before they are implemented.

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One intemperate note was perhaps struck by my noble friend Lady Kennedy of The Shaws, whom all will know I greatly admire for her passion, tenacity and advocacy. We have been friends for a very long time—I think we share the distinction with my noble and learned friend the Lord Chancellor of all taking Silk on the same day. I should remind her that I have never imbibed alcohol, and that I do not intend to take up the practice now—so there will be no drunken romance for me. However, there will be—as there has been to date—a measured response to what is proposed so that, I hope together, we will be able to fashion a system worthy of the people of our country. As many noble Lords have said, that will demand a balanced, proportionate response, taking into consideration the fears and anxieties put so powerfully by several noble Lords, not least my noble friend, Lord Mackenzie and others on the other end of the scale who feel with equal passion that this balance should be not be obtained for other reasons. Balance must be our key word if we are to get this right.

The noble Lord, Lord Adebowale, raised some important points about the criminal justice interventions linked with substance misuse. That is an important theme, running through the Bill. The noble Lord was right to express concern about the growing need for such interventions to occur at an earlier stage and was rightly concerned that testing and drug rehabilitation requirements for young people might push young people into adult-based services. I am glad to confirm that that is not our intention.

The provisions relating to young people will be piloted on a limited basis at first. In the mean time, we are busy expanding the treatment facilities available to young people. The Youth Justice Board is providing funding for all 155 youth offending teams across England and Wales to have access to an allocated, named drugs worker. By April 2004, all young people, including young offenders who need it, will have access to treatment. The National Treatment Agency has allocated 15 million from its pooled budget for this work in 2003 and 2004.

I shall not be able to deal with all matters in such detail, but I turn now to the comments made by the noble Baroness, Lady Linklater, particularly on the issues relating to how that package will be put together. She raised the issue of resources. I can reassure the noble Baroness that we certainly do not intend that the new sentences should lead to an upward sentencing drift and increases in the prison population. With respect to the generic community sentences, although there is a risk that sentencers will use the variety of requirements to increase conditions, they must do so within strict principles of proportionality. The Probation Service will inform sentencers in its reports of the appropriate selection. Furthermore, the Sentencing Guidelines Council will be in a position to issue guidelines on its application for certain offences. The judiciary will be properly trained in the new provisions.

We are providing an important menu—something form which judges will be better able to pick the solution—the punishment—which best fits the crime,

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but also with a view to helping to ensure that offending does not continue after whatever sentence is imposed is served. It is easy to pick out individual components, but we must look at the scheme holistically. That is relevant to what I shall say later in answering the concerns of the noble Baroness, Lady Stern, in relation to persistent offenders. The Courts Bill will, we hope, strengthen the effectiveness of fines and their imposition so that, contrary to the concerns raised, fines will become a better tool in the armoury of the sentencer than has been the case historically.

Many noble Lords indicated that they are opposed to the provisions in Part 7 on trials without jury. I know that that will be an area of intense debate in Committee. We have had some powerful speeches on this from a number of my noble friends, including Lord Brennan, Lady Kennedy of The Shaws, Lady Mallalieu and my good friend Lord Clinton-Davis, joined by the noble and learned Lords, Lord Mayhew and Lord Ackner, the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Seccombe, to name but a few.

We understand the nature and the force of the comments made, but my noble and learned friend the Lord Chancellor indicated in his opening speech that the Government are not attacking the basic principle of jury trial, which we believe should remain the norm for serious cases. However, it is right that the arrangements for juries should be kept under review. Whenever a change to jury trail has been proposed, there have been strong objections which have proved, in time, not to have been well founded. For example, in 1967, reform to allow majority verdicts was opposed by critics who argued that it would lead to injustice. Few would make that claim today. Removing the defendant's right to peremptory challenge of jurors was also the subject of controversy. Again, there is no evidence to suggest that that has led to unfair trials.

The proposals that we are bringing forward in the Bill will affect only a small number of cases. They are intended to protect juries from intimidation and from the excessive burden and intrusion on their lives that long fraud trials can involve, and to improve the real difficulties of managing those kinds of trial. I am sure we will be debating those issues in great detail in Committee.

The issue of retrial of serious offences had a similar impact on the speeches of a number of noble Lords. My noble friend Lady Howells expressed concern about that, together with my noble friend Lady Mallalieu and the noble Lord, Lord Carlisle. The noble Lord, Lord Mackenzie, gave some graphic examples of the type of cases where justice may demand that the issue be looked at again. We will have to grapple with that important issue and look at it very seriously. The people of our country will demand that we do that.

The noble and learned Lord, Lord Donaldson, made a very interesting suggestion, if I may respectfully say so, for proceeding in the exceptional cases where retrial is justified without quashing the acquittal, and on the basis of a broader test relying on

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the Court of Appeal's discretion. The House will have an opportunity to look more closely at the detail of that in Committee, but the Government's view is that it is necessary to quash an acquittal in order to proceed with a fresh indictment and a retrial, and that the criteria guiding such proceedings should be clearly set out in statute. We need to debate that.

The issue of evidence caused huge anxiety. Almost all noble Lords expressed concern about the provisions in Chapter 1 of Part 11. The Government's view is that we should allow previous convictions to be admitted by judges where relevant to the issues in the trial; that is, where they will assist jurors to understand the case and reach a proper and fair decision. Judges will have the power to exclude that material where they think that it would be given undue weight and where its prejudicial effect would outweigh its probative value. The criteria in Clauses 92 and 93, and the exclusionary test in relation to defendants, provide a balanced approach that enables courts to hear evidence that has a proper bearing on the case, while excluding that which would be too prejudicial. We do not agree that that risks compromising the right to a fair trial.

The noble Lord, Lord Chan, made the interesting suggestion that there should an independent element in making scientific assessments. That is something that we really need to think about.

I turn now to the issues raised at Part 12 of the Bill, which deals with sentencing. The noble and learned Lords, Lord Ackner, Lord Donaldson and the Lord Chief Justice, and the noble Lord, Lord Carlisle, spoke powerfully on that issue. Parliament is not seeking to impose the eventual sentence that judges will hand down. Judges should never be reduced to mere bean counters, as has been suggested, and that is not what we propose. The noble and learned Lords, Lord Mayhew and the Lord Chief Justice, were correct in highlighting that the current sentencing framework has not been as successful as it could have been in reducing reoffending. That is partly because of the muddled legacy that has grown up in this area since 1991, and the inconsistencies and complexities that have resulted from the gradual erosion of the 1991 framework through piecemeal change. It is also because the sentences themselves, custodial and community, have not been effective at correcting offending behaviour. We need to look at those figures.

Although performance has improved, the figures that were given by a number of noble Lords are clearly still too high. That is why we are seeking to redesign sentences so that we can build more effectively on development in what works in crime reduction and focus more exclusively on rehabilitation. We do have an issue in terms of the inconsistency of application across the country, which we must address.

The issue raised by the noble and learned Lord the Lord Chief Justice was central to this debate. He made it clear that there was a parting of the ways in terms of what the Government proposed and what the judges felt was right. We must address that area together to ensure we get it right.

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That is one of the reasons for creating the new Sentencing Guidelines Council, which will issue a consolidated set of sentencing guidelines on all offences and on general matters affecting sentencing, which must be taken into account by all criminal courts. That will also go some way towards making the sentencing framework more transparent and accessible to the public and practitioners. That is another key goal of our sentencing reforms.

We do not see the current sentencing framework as a straitjacket that will make it inaccessible. That is the result of a large volume of statutes, at least eight since 1991, most of which amend each other, and an equally

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large volume of case law, which is conveniently set out in Thomas' Encyclopaedia on sentencing. On top of that, an interesting inquiry would be directed to the magistrates' courts sentencing guidelines. All of that must be clarified.

There are so many issues on which I would have wished to respond more fully. I shall certainly write to noble Lords about those matters. However, I envisage that my taste of the Criminal Justice Bill is only just beginning.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

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