Criminal Justice and Immigration Bill

I am not suggesting that the Home Secretary should follow that precedent, but she did say that she would not be safe in Kensington. That shows you the standing of this Government. Although we are still heading the European league tables for crime, we imprison vastly more offenders than our European neighbours. Prison is not the answer. According to the International Centre for Prison Studies based at King’s College London, in 1998 we imprisoned 98 out of every 100,000 citizens; today, that figure has gone up 50 per cent to 143 out of every 100,000 citizens. Let us look at the comparisons. In that same period, France has moved from 85 to 84 in every 100,000 citizens, Germany from 93 to 81, Italy from 67 to 85, Ireland from 72 to 71 and Denmark from 67 to 64. Imprisoning 143 out of every 100,000 citizens in this country is the result of that macho swaggering that we saw by rival Home Secretaries of both Governments. Prison does not work, but what is the Government’s answer? It is build more, build bigger. On sentencing, we shall be concerned under Part 2 to examine the failure of the indeterminate sentence for public protection and to attack the unconstitutional attempts to have released prisoners recalled for a fixed term of 28 days at the say-so of the Secretary of State, without any judicial or independent oversight. With violent offender orders, we are back on familiar territory. This is the use of the criminal justice system not for the investigation and punishment of past offences, but as a tool to manage future risk. Over centuries, in order to protect the innocent defendant, the common law developed the concept of due process in criminal cases, as encapsulated in Articles 6(2) and (3) and 7(1) of the European Convention on Human Rights. However, no similar safeguards exist or have been suggested for the misuse of civil procedures to impose conditions or requirements on an individual, breach of which amounts to a criminal offence. It is not a technical procedural question of interest only to lawyers; it involves a court—frequently on hearsay, tittle-tattle evidence, which would not be received in a criminal court—making an order that sets out a personal code for the individual forbidding such conduct as prostitution or entry into an area of a town or a particular public house, which is not criminal in itself. It follows that a person who breaches his own personal criminal code imposed on him may be sent to prison for non-criminal conduct, which would not have that effect on anyone else. The principle of all those orders, from ASBOs onwards, is bad—and the practice is even worse. Another issue of principle arises with the proposal that unqualified CPS staff will be able to conduct serious trials in a magistrates’ court, which is totally contrary to the public interest. I cannot put it better than the Bar Council, which said that, "““in cases involving contested facts, issues of law, and serious allegations, which demand a high level of professional responsibility and developed advocacy skills legally qualified lawyers have an essential role to play. Qualified lawyers, who are under a professional duty to be independent, not only contribute to maintaining the independence of prosecutions in our criminal justice system but they also inspire confidence in the public and the victims of crime.””" It is a cost-saving exercise that the Government are engaged in. There are two necessary requirements: first, to put a ceiling on the type of case that may be conducted by an unqualified person—certainly not including cases punishable by imprisonment—and, secondly, to ensure that any CPS staff appearing in court at least qualify with ILEX, the Institute of Legal Executives, and are taught to understand and apply the ethics of advocacy thoroughly. Your Lordships will appreciate that the negotiation of pleas, the disclosure of documents and other evidence, and the rules of evidence themselves are particularly important. It is wrong that the only person in court who might have received any training at all should be the court clerk—and even he does not have to be a professional. It would hopelessly inappropriate for him to advise the prosecutor on how to conduct his case properly and then go in with the magistrates to advise them on the law. I turn to populist measures, which I mentioned at the beginning and which are simply misconceived. The Government seem to think, along with the tabloid press, that under the law as it presently stands defendants who are guilty regularly escape punishment because the Court of Appeal will quash their convictions on a technicality. Since 1907, the Court of Criminal Appeal has been required to dismiss an appeal if the jury would inevitably have convicted. However, the court does not consider whether it is satisfied beyond reasonable doubt of the guilt of the appellant. How could it? It has no opportunity to see the witnesses, hear what they have to say or see them examined or cross-examined. The task of the Court of Appeal was to determine whether the defect was so fundamental as to make the jury’s verdict unsafe; if it does so conclude, generally it will order a new trial. This new proposal that the Court of Appeal will not dismiss an appeal if it is convinced beyond reasonable doubt of guilt turns it into judges of the facts without hearing the evidence. That is utterly alien to the rule of law. I turn to another topic: the introduction of a watered-down Megan's law in Part 13. It ignores existing practice, which involves the notification of head teachers of the presence of someone who is a danger. The presumption that information about an offender should be disclosed not simply to a targeted individual but generally, as the Bill proposes, will dangerously encourage vigilante groups of the sort which attacked a paediatrician because they thought that she had something to do with child abuse. As for self-defence, I suppose that it is the Government's intention, following the Martin case, to strengthen the defence of self-defence to allow a householder to shoot someone in the back as he runs away. At common law, a defendant today who acts under a mistaken belief has to show that his belief is objectively reasonable. The new provision put forward by the Government says that he is protected by this defence even if his mistaken belief was entirely unreasonable. I do not agree with the Joint Committee on Human Rights that the clause clarifies but does not amend the existing law: it strengthens self-defence in a way that I hope your Lordships will agree is quite inappropriate. I shall have much to say on the proposed cap on compensation for miscarriages of justice. The Government do not seem to realise that if a person is wrongly imprisoned he is a victim of the state, not of a third party, and it is for the state to put him in the same position he would have been in had he never been wronged. As for extreme pornography, Clause 113 is utterly vague, and Clause 115 proposes an unacceptable reverse burden of proof. We welcome what the Minister said a moment ago, when he appeared to recognise that. I shall leave it to my noble friends Lord Wallace of Tankerness and Lady Miller to comment further on the provisions of Parts 7 and 8. Similarly, in Committee, my noble friend Lady Harris will deal with policing matters in Part 11 and my noble friend Lord Avebury with special immigration status in Part 12. I make no excuse for speaking at length on the Bill. The primacy of the House of Commons in this Parliament has become a joke. As the noble Lord, Lord Henley, pointed out, the Government started off in the other place with a Bill of 129 clauses and 22 schedules and ended up with 202 clauses and 37 schedules. Large swathes of legislation were simply tossed into this ragbag of a Bill in Committee and on Report and were never debated because there was not sufficient time. Everyone looks to your Lordships in this House to scrutinise and sort it all out. Well, I assure the Government that we have the time. We will scrutinise these measures clause by clause and schedule by schedule, and we hope that there will not be scrawled on the government brief the magic word ““resist””. Perhaps the first sign of spring is the abandonment of Parts 4 and 5, which gets rid of 47 clauses voted through the other House on a Whipped vote. The proposal then was to replace the ombudsman with HM Commissioner for Offender Management and Prisons, someone who was neither a commissioner responsible to Parliament nor involved in offender management. What a title—Gilbert and Sullivan would have loved it. We will raise issues that colleagues in the other place sought to argue but which were ruled out for lack of time. Such issues are data protection and the scandal to which the noble Lord, Lord Henley, referred of personal files in the control of the Government dropping off the back of a lorry, and human trafficking. Why are we legislating on prostitution but still delaying ratifying the Council of Europe Convention on Action against Trafficking? We will look to the Government to fulfil the pledge that was given to Dr Evan Harris, my colleague in another place, on the abolition of the law of blasphemy, and we shall bring forward other serious amendments hoping to persuade your Lordships to include them in this Bill. If, in due course, they are rejected on a Whipped vote by the government party in the Commons—a party supported at the last election by 35.1 per cent of those voting—then the joke will be upon the people of this country, and they will not find it very amusing.