Examination of Witnesses (Questions 40
TUESDAY 16 OCTOBER 2001
LAIRG QC AND
40. Is this going to be in the form of a jury
(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 recommendedand perhaps
this is less controversialthat 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.
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.
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
(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
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 courtsthey are usually recovered of coursecannot
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
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
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
Chairman: Can we turn to access to justice.
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 singleI
shudder to tell you how large my mail bag isletter 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
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.