Criminal Justice and Immigration Bill

My Lords, I can say in all truthfulness that I agree with every single word said by the noble Lord, Lord Judd, on the aspect of children; I just wish that the Government would not only take him seriously but act on his advice. I am deeply privileged to serve on the Joint Committee on Human Rights. Two of us are down to speak today—the other is the noble Baroness Lady Stern, who will cover youth justice, offender management, compensation for miscarriage of justice and prostitution. I will attempt to summarise our position on the rest. The noble Lord, Lord Hunt, stated on the face of the Bill that it was HRA compatible, but we have serious doubts about that. We have looked into it in depth. Our committee is chaired by a very able member of a different party from me from another place and we arrived at our conclusions effortlessly and unanimously. Our committee noted with disdain the amount of clauses that went undebated in another place. This Government’s lack of respect for Parliament and government Back-Benchers’ supine acceptance of timetable Motions is nothing short of pathetic. The Government claimed that they would rebalance the criminal justice system. What exactly does this mean? In giving evidence to one of our committees in 2005-06, the noble and learned Baroness, Lady Scotland, stated that there was no need to rebalance the criminal justice system. Could we please have some help on which of those two things the Government mean? I start with the changes to the Court of Appeal, which were dealt with extremely well by the noble Lord, Lord Neill. I really should not have anything to add but as I am trying to summarise what the JCHR has said, I ought to try. We are concerned about the fact that the judges will be asked to adjudicate on fact—which is the proper job of a jury—and not on the conduct of the trial. Surely the job of the Court of Appeal is to find whether the trial has been properly conducted and whether there are grounds for a retrial or for the throwing out of the conviction. I believe this has arisen because there is a rumour going about that the Court of Appeal has been letting criminals off because of triviality. There is no evidence of this and the court has found no evidence of this. In previous reports on monitoring breaches of human rights we have noted that the UK law does not allow the reopening of criminal cases following an ECHR judgment. This Bill has an opportunity to rectify that and I hope that we can persuade Her Majesty’s Government so to do. I now turn with gentle delicacy to extreme porn. What is it? Is it Juvenal’s ninth satire? I have unfortunately lost my Latin copy of it; otherwise, I would have quoted it to your Lordships. However, I certainly would not dream of translating it. Luckily, we are of a much less classical generation so I hope that most of your Lordships would not have understood it. I once quoted it on the wireless—on a Radio 3 programme about pornography rock with the encouragement of the noble Lord, Lord Alli, and a minor payment. This little sideline concerns what is meant by extreme porn. ““Extreme”” is an extremely subjective word. The law must not have subjective judgments in it; it makes things too difficult, if not impossible, and it makes judgment on facts difficult. We wrote to the Minister, asking for a definition that was sufficiently precise and foreseeable to pass Article 8, relating to respect for privacy, and Article 10, relating to freedom of expression, and asked whether the new offence was necessary in a free society. We are concerned at the vagueness of the offence. We question whether Clause 113 is precise or foreseeable enough to meet the Convention requirements. The offence requires the image to be extreme. That is an extremely subjective judgment in itself. The Explanatory Notes state that the new offence was made to protect individuals from participating in degrading staged activities or bestiality, to cut supply and to prevent others from accidentally coming across such material. We question whether the behaviour criminalised in Clause 113(6)(a) and (b) should be so if carried out by adults in private. Self-defence and force used to prevent crime are welcome. Our committee thought that the Government clarified it—although the noble Lord, Lord Thomas, said that they did not, so we will have to work that out later—rather than extended the existing law. The noble Lord, Lord Neill, said that that put ““a gloss”” on it, which is a good expression. However, the issue also brings into focus the question of reasonableness in the circumstances, regardless of the reasonableness of that belief. This can be summarised thus: if a racist householder shoots a black visitor because he believes that all black men are burglars, should that be classed as a reasonable thought and should it be taken into account? Violent offender orders were not debated at Report in the Commons and they raise serious human rights issues. First, is the power to make them sufficiently defined as to be compatible with the Human Rights Act? Secondly, are they fair in accordance with Article 6? Thirdly, are there sufficient safeguards against retrospective punishment? We think a power to impose VOOs that interferes with Convention rights is not well enough defined to satisfy legal certainty. Unlike the Prevention of Terrorism Act or the Serious Crime Act, the Bill does not include an indicative list of prohibitions, conditions or restrictions that may be imposed. The Explanatory Notes to the Bill state that VOOs are not punitive and do not constitute sanction. On that issue, we asked the Government three questions: first, would they distinguish between VOOs and indeterminate sentences for public protection; secondly, why is it appropriate to use civil proceedings in circumstances of criminal conviction; and, thirdly, why are criminal guarantees not appropriate in the light of the McCann case? I shall quote the noble and learned Lord, Lord Bingham, who stated in the Court of Appeal that the procedural protections must be commensurate with the gravity and consequences of the controlled individual. He stated: "““In our view, the combination of the fact that a VOO will only be made where an individual has already been convicted of a serious violent offence, the risk being protected against is the risk of that person causing serious violent harm in the future by committing a serious criminal offence, the severity of the restrictions to which an individual may be subject under a VOO, and the possible duration of such an order (up to two years and infinitely renewable) means that in most cases an application for ""a VOO is likely to amount to the determination of a criminal charge for the purposes of Article 6 and therefore to attract all the fair trial guarantees in that Article””." The Government have accepted in the Commons that criminal standards will apply, but they must be in the Bill. The Minister has confirmed that hearsay evidence and written rather than verbal evidence will be allowed. This evidence must be open to challenge on behalf of the accused, otherwise it will not be subject to Article 6. Interim violent offender orders can be imposed for four weeks initially and renewed indefinitely. No proof of individual behaviour is necessary. These two conditions are excessive. There must be prima facie evidence and a limit on renewability. The Government dispute that VOOs may clash with Article 7 of the Convention on the possibility of retrospective punishment—that is, the imposition of a VOO arising out of a conviction prior to the Bill becoming law. The Government say that VOOs are not punishment, but are preventive measures; but imposing a curfew sounds to me extremely like, and not dissimilar from, punishment. Premises closure orders run the risk of creating homelessness and interfering with property rights. The Government are to produce guidelines, but they should be in the Bill. Special immigration status gives rise to the risk of further breaches of the refugee convention and, therefore, the statutory interpretation by the 2003 Act of Article 1F should be repealed. The Bill will attract trouble ahead and I will happily mix it with the best, because the legislation needs serious revision. I hope that noble Lords will accept that that was rather a rushed précis of a long and complicated document.