Criminal Justice and Immigration Bill

I should like to record my congratulations to the new Chairman of the Home Affairs Committee, the right hon. Member for Leicester, East (Keith Vaz). He served with me from the beginning on the Constitutional Affairs Committee, which is shortly to become the Justice Committee. He was acerbic in his questioning of Ministers, and showed neither fear nor favour to Ministers of the Government whom he supports. I hope that he will apply that rigour to his new work; I am sure that he will. May I also congratulate my hon. Friend the Member for Somerton and Frome (Mr. Heath) on teasing out the issue of the programme motion? I am glad that there have been discussions on that, and that it looks as though the issue will be resolved satisfactorily. I would expect no less from the Lord Chancellor. He always shows an exemplary degree of recognition of the importance of procedures of the House—by the admittedly not always demanding standards of the present Administration—and that is something that I have come to expect from him. It is necessary to look at the background to the Bill, because in some respects it has been built on rather shaky foundations, given some of the problems that we face in the criminal justice system. Prison numbers have been cited several times, with 81,000 and rising, and hundreds in police cells. The early releases under the end-of-custody licensing scheme have also caused concern, and the prison officers' dispute is a matter of serious concern to the Minister of State. Whatever view we take of the tactics used by the Prison Officers Association, we need to bear in mind the prison officers' deep sense of being undervalued. The Minister came to my constituency and together we visited Acklington and Castington—a prison and a young offenders institution. I will give the House an example that the right hon. Gentleman will remember. The prison officers asked how it was that they, who were carrying out their jobs on behalf of our society, were almost the only public servants who were not protected from the effects of smoke inhalation when going about their work. Prisoners are allowed to smoke in their cells and, as the Minister observed, in some cases that involves groups of cells and other areas in which they can move about, and into which the prison officers must go. ““Yet again,”” said the prison officers, ““nobody thinks about us when laws are drafted or policies devised.”” The Minister must be aware from some of the meetings that he has had that many prison officers feel seriously undervalued, not just financially but more widely as well. The Carter review into the custodial estate and sentencing represents another element of uncertainty in regard to the foundations on which this legislation rests. I also referred in an earlier intervention to the chaos over indeterminate sentences for public protection. They are being used far more widely because of the lack of judicial discretion available. They are applied to summary offences, and now cover 153 offences, some of which would normally attract a very short sentence. The result is that the Parole Board cannot deliver reports in time, and people are therefore being detained when there is no proper basis for doing so. The whole system collapsed in Wells and Walker v. the Parole Board. In the meantime, the president of the Queen's Bench Division said that the Parole Board needed 100 extra judges to manage a system operating on this scale. The chief executive of the Parole Board has said that £3 million has been allocated to the National Offender Management Service to address the problem, but"““where the infrastructure will be found to spend that money properly, I do not know””." That is a system that is going very seriously wrong indeed. Meanwhile, NOMS itself is proving as wasteful and useless a superstructure as we all warned that it would be. It was bolted on top of a system that was already under strain, and we could have used the money required for the creation of NOMS in much more constructive ways. Mrs. Brennan of the Ministry of Justice is reported to be carrying out a fundamental review—to which the Minister referred earlier—which might even recommend the break-up of NOMS, even though it could retain some nominal overall structure. On top of that, the NOMS information technology system is in chaos. As if all that were not enough, there is an unresolved dispute between Ministers and the senior judiciary over the safeguarding of judicial independence. That has particular relevance to sentencing. We still have not had any kind of statement from the Lord Chancellor on whether further discussions on that matter are taking place, and I hope that we shall have the opportunity to press him further on that this week. None of those problems will be solved by the Bill. Even where it addresses some of them, it does not seem to tackle them effectively. I have read and re-read clause 12, on indeterminate sentences, and it might be a mark of my inadequacy, but I still cannot understand what its effect will be. It certainly will not be to remove the problems relating to indeterminate sentences that I have just identified. Of course, there are good things in the Bill, most obviously perhaps the fact that it will give a statutory basis to the prisons ombudsman. That is overdue, necessary and very welcome. However, some of the Bill's provisions could actually add to the number of people in custody. For example, some of the provisions in clause 2 on youth offender orders, and even those in clause 72 on street offences, could have that effect. The Bill raises some important wider issues that have not been considered by the Constitutional Affairs Committee, and any view that I express on those will be a personal one. I shall confine myself to just one of them. Clause 26 will allow the Court of Appeal to form a view when considering whether a conviction is unsafe on the basis of abuse of process, and to form its own view as to guilt on the basis of the evidence available to it. I am glad to hear from today's discussions that that clause is to be reviewed. It would give the Court of Appeal a fact-finding role—not its normal role—and has the potential to undermine the integrity of the judicial process by allowing bad process to obtain a conviction. This could encourage what has misleadingly, or perhaps euphemistically, been called ““noble cause corruption””—that is, the fabrication of evidence in order to obtain convictions when satisfactory evidence does not exist. Having made my criticism of the clause, however, I believe that we must also consider this question. If there is sufficient evidence of guilt but there has been some abuse of process, who should be punished? The danger is that if the method of dealing with abuse of process is to allow the appeal and free the offender, it will not be the person who has carried out the abuse of process who will be punished. It will not be the police officer who has fabricated evidence, or the prosecutor who has admitted into the prosecution case material that should not have been so admitted who will be punished. It will be the public, the community, who will have a dangerous criminal against whom there is clear evidence of guilt released on to their streets. So it will be the public who are being punished, not the person who perpetrated the offence. While it must be wrong to found conviction on unsafe processes, it is also wrong that the punishment for an abuse of process should be visited on the public, who are seeking the defence of the criminal justice system, rather than on those who have carried out the abuse. Wherever possible, the system ought to be punishing the abuse rather than stepping back from the determination of guilt. I am not convinced that the clause has got this right, although it does address a genuine—if quite rare—problem. The Government are right to try to address it in the Bill, and I hope that we can arrive at a satisfactory solution through further discussion. I hope also that, in response to the consideration that has taken place today, those discussions will be suitably measured, not only on that clause but on the many other features of this complex Bill.