Criminal Justice and Immigration Bill

My Lords, there have already been some major contributions to our debate. We have had the speech of the noble Baroness, Lady Howe of Idlicote, the memorable speech of the noble Baroness, Lady Kennedy of The Shaws, stressing the importance of the rule of law in our lives, and the profound but entertaining contribution of the noble and learned Lord, Lord Mayhew of Twysden, with the ironmonger’s shop. He need not despair; they have not all vanished. I can take him to one in Dorchester which fully satisfies his rigorous requirements. It is almost hopeless to engage in a Second Reading debate on the Bill. There is far too much in it. In my view, a lot of it was ill considered at the drafting stage and so much of it has not been considered by the first House. I shall take two examples. I hope to show that the first, the defence of self-defence, needs a good deal of further thought. The other relates to Clause 42, which deals with the right of appeal and how the Court of Appeal will be required to conduct its caseload in future if the Bill is enacted in its current form. On self-defence, the Explanatory Notes state: "““Clause 128 provides a gloss on the common law of self-defence and the defences provided by section 3(1) of the Criminal Law Act 1967 and section 3(1) of the Criminal Law Act (Northern Ireland) 1967, which relate to the use of force in the prevention of crime or making an arrest. It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force””." So we have something that is glossing the existing law—in an unspecified way, from what I have read so far—and is explanatory and is intended to improve understanding, so it has a sort of teaching role, but the law is not changed. With that introduction, the clause itself then sets out various provisions. Clause 128(7) says: "““This section is intended to clarify the operation of the existing defences mentioned in subsection (2)””," one of which is self-defence. It is a very odd to find within a clause a provision saying that the clause’s function is to clarify the common law defence, which we are told in the Explanatory Notes has not in any way been changed. However, if the noble Lord, Lord Thomas of Gresford, is correct, the law is changed. Clause 128(8) says: "““For the purposes of references in this section to what D””—" that is, the accused— "““believed, it is immaterial whether … any belief of D’s was mistaken, or … (if it was mistaken) the mistake was reasonable””. " As I understand it, that changes the law. It is odd that we are not told what the gloss is and that an earlier subsection says the clause is merely clarifying what the existing position is. Some of the provisions are couched in the most extraordinary language. Clause 128(5), which sets out what the jury will be asked to consider, says that a person, "““acting for a legitimate purpose””—" I am a bit puzzled by that; presumably a ““legitimate purpose”” is self-defence, so the whole thing is circular— "““may not be able to weigh to a nicety the exact measure of any necessary action””." So the jury will be asked to consider whether the defendant could have weighed ““to a nicety”” the measure of force to be used. That is pretty incoherent. It has not been thought through properly at all. That is a minnow, however, compared with the destructive operation of Clause 42, which deals with the function of the Court of Appeal. I remind your Lordships that, for the purposes of Section 1A of the existing 1968 Act, a conviction is not unsafe if the court thinks there is no reasonable doubt about the appellant’s guilt. While listening to the debate, I have jotted down typical examples of where under current practice one might expect that the Court of Appeal would want to upset a conviction. I shall give your Lordships four of them, and see what fate would befall the appellants now. First, the judge in his summing-up failed to put the case of the defendant to the jury. Secondly, he misdirected the jury on the applicable law on a relevant point. Thirdly, he wrongly refused to allow the defence to call three witnesses. Fourthly, it emerged after the trial that the prosecution had in its possession written statements which might have given some support to the defendant’s case. Let us go back to the first example: failure to put the case of the defendant to the jury. Under the Bill, the Court of Appeal would say, ““Well, we have had an excellent exposition of the case of the defendant; we fully understand it. We have had that knowledge. We now ask ourselves whether there is any reasonable doubt about the defendant’s guilt. No, we do not think there’s any doubt about it. It does not make any difference that the case was never put to the jury and summed up for them””. Let us go back to the second example: misdirection on some point of law in the case. The Court of Appeal would now say, ““That does not matter. We know what the law is. That rule of law affects our thinking that this man was guilty and there is no reasonable doubt about it””. And so one can go on. In the third example, the judge refuses to allow certain witnesses to be called. The Court of Appeal now says, ““We have read those witness statements. We do not find them convincing; we do not suppose that a jury would have found them very convincing, so appeal dismissed””. The same would apply with the statements which were not made available. It may be misconduct by the prosecution, which can be criticised, but the court will say, ““It is not a ground on which we can allow the appeal, because we read those statements and, once again, we are satisfied that the evidence before the jury, even if the statements had been available, is enough to ensure guilt””. The clause completely undermines trial by jury. It substitutes trial by the Court of Appeal for trial by jury. That is a grave development, which should not be allowed to happen. I remember the late Lord Devlin giving an address in which he attacked a decision of the House of Lords, sitting judicially, wherein, in his view, it had done precisely what the Bill does: it had substituted its view of the facts of the case and restored a conviction where a lower court had not taken quite a different view but could not interfere with the verdict of the jury. That is the vice in Clause 42. I shall content myself with those two points.