Criminal Justice and Immigration Bill

My Lords, I find myself returning to a theme that I have addressed a number of times in this House: the rule of law and what it means in contemporary society. The law is sometimes misunderstood by those who govern us; they often forget that the law is the bedrock of our nation. It tells us who we are and what our values are. It has a huge impact on our lives. I am afraid that, too often, Governments—and I mean that in the plural—see the law as an instrument to be used to secure seemingly sensible outcomes, when in fact the law is a fabric, where one thread pulled can cause unravelling well beyond what was anticipated by Ministers. Sometimes, short-term populist gains blind those who govern us to the long-term consequences of tinkering with well established legal principles. I share the concerns of other noble Lords. I am concerned about the youth justice proposals, about the expansion of prison places without consideration of the Corston recommendations, and about the abandonment of due process in the violent offender orders. In relation to self-defence, the law that we have is perfectly adequate, and I am interested to see that we are replacing an objective test of what an accused believed was necessary, and moving to a subjective test. The very argument for the importance of introducing objectivity was the reason for changing our test in relation to rape. We decided that a subjective test of what an accused in a rape case believed was not a good test, and we should make it objective, using as our allegory what was done in relation to self-defence. There are many myths about the criminal justice system. There is the myth that large numbers of criminals are getting away with it when, in fact, the vast majority of people arrested plead guilty or are found guilty. There is the myth that judges are soft touches who rarely send people to jail, which has never been my experience. Only last week we were presented with the new myth that murderers are getting bail, which is, again, far from the truth. Then we have the myth that people get off on appeal because of a technicality. I regret that the Government have drawn on that myth in introducing Clause 42. Appeals are rarely successful. The majority of criminal appeals are filtered out; they go in front of a single judge as a paper exercise, then in front of a court as an application for leave to appeal. Legal aid is often withdrawn from appeals that are hopeless. When an appeal goes in front of the court and eventually succeeds, that is invariably for a very good reason. Winning an appeal is hard. The judge says, ““Lady Kennedy, the jury saw your client, it heard his story, and the verdict would have been no different if it had known about the matters of which you complain””. The test applied by the Court of Appeal is: was the verdict rendered unsafe? We must remember that in a just system of law, things matter beyond the individual case. The criminal appeal process exists not only to ensure that the innocent are not punished but to uphold the rule of law. The function of criminal appeals is not just to see that in a given case the right result is obtained, but to ensure that the law, rules of evidence and procedure are respected and applied. Anything else would act as an incitement to undermine procedure. It would give a green light to police officers, for example, to take shortcuts. It sends out powerful messages to those who act on behalf of the state as to how to conduct themselves. In extreme and unusual circumstances the Court of Appeal will quash convictions that are tainted by grave breaches of the law or serious failures to apply the rules, irrespective of the factual guilt or innocence of the accused. I emphasise that it is rare when that is done, but when it is done it is because of the belief we share that a criminal conviction is acceptable only if it carries moral authority. A decision reached in defiance of the basic rules that society prescribes for criminal investigations and for trials does not carry moral authority. If convictions can be upheld where the authorities have flouted fundamental tenets, the self-restraint that the authorities are expected to show in keeping to them will be undermined. It will send a signal that breaking or bending the rules can pay. Those who enforce the law should obey the law and not benefit from breaches or irregularities. Few in this House would argue with the noble and learned Lord, Lord Bingham, who, in the case of Randall, said that, "““it is not every departure from good practice which renders a trial unfair … But the right to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable, that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty””." The concern that I and many of us involved in the law have is that we are changing the basis on which our Court of Appeal functions. We are interfering with the rule of law. Clause 105 is, again, about interfering with important principles within our system. It will extend the powers for non-legally qualified persons to act as prosecutors in the magistrates’ courts. We are allowing efficiency gains, which are all to the good in most circumstances, but which should never outweigh fair trials. To allow the prosecution of a case in the magistrates’ court by unqualified staff, where there might be a loss of liberty or a conviction for dishonesty affecting someone’s life fundamentally, would, we must agree, be quite wrong. I hope that the Government will look again at some of those changes. Law is the glue that holds together the constituent parts of our society, and it is a civilising force. As soon as we forget that, we run serious risks. Law is what makes the centre hold—to refer to my favourite poet, Yeats. It is the mortar that fills the gaps between people and communities. A just system of law is the invisible substance which sustains social well-being, social and moral consensus, and mutuality of interest and trust. It is built around principles. The principles of the rule of law should not be subject to change without great care. If we interfere with those principles which underpin law, fritter them away and pick them out of the crannies of our political and social architecture, restoration becomes impossible. Therefore, I will be asking the Government to think again about a number of the changes in the Bill, which again are interfering with those well established principles which we should hold dear.