Criminal Justice and Immigration Bill

My Lords, many Members will have received, as I did, the briefing paper from the Bar Council to which the noble Lord referred earlier, criticising, in particular, Clauses 42 and 105. Clause 42 has already been very well covered, notably by the noble Baroness, Lady Kennedy of The Shaws, and by the noble and learned Lord, Lord Mayhew, but, if I may, I would like to add my penny-worth to the argument. The inclusion of Clause 42 seems to me to show that the Government have no clear idea of the existing powers of the Court of Appeal, or, indeed, what the Court of Appeal is there for. It is simply not the case that appeals are allowed because of minor procedural errors. If there are such errors, the appeal will certainly be dismissed on the grounds that it will not have affected the safety of the conviction. If the errors are more serious, the conviction may well be quashed but, very generally, there will be an order for a new trial—apparently, in one-third of all cases where convictions are quashed. That seems to me to show that the existing system is working well. There remain those cases, the very few cases—Mullen is always the one given by way of example—where, for whatever reason, the defendant has not had a fair trial. In those cases, the conviction must be quashed, even though there is no possibility of a retrial. Why? Because it is an overriding duty of the Court of Appeal to ensure that defendants have a fair trial, no matter how guilty they may seem to be. That has always been the function of the Court of Appeal, and that is now the court’s duty under Article 6 of the European convention. If the defendant has not had a fair trial in accordance with the rule of law, his conviction must be quashed. It is as simple as that. It therefore seems to me that proposed new subsection (1A), by requiring the court to dismiss the appeal if it is satisfied of the defendant’s guilt, is clearly in conflict with the court’s duty under Article 6 of the convention. It is true that new subsection (1B) would go some way to cure the defect created by new subsection (1A) in some cases, but it does not go far enough. In any event, what could be the point of enacting new subsection (1A) to cure a defect or fill a gap that does not exist and then create an express exception to that provision? That simply does not make sense, and I hope that, in due course, we will see to it that Clause 42 is removed. As for Clause 105, designated case workers clearly perform a very valuable function, but they are not qualified legally to conduct trials. As the noble Lord, Lord Thomas, suggested, it seems to me that Clause 105 has been included as a cost-cutting exercise. It may not even be effective as that, but whether it is effective or not, it must not be allowed to interfere with justice. Like the noble and learned Lord, Lord Mayhew, my eye was caught by Part 13, quaintly entitled ““Miscellaneous”” provisions. One might ask exactly what was the dividing line between the provisions included in Part 13 and the rest of the Bill? However, the Bill being what it is, it is perhaps better at Second Reading to stand back a little from the detailed provisions and consider in what way the criminal law is now moving. The first and obvious question is: why are we being asked to consider this massive criminal justice Bill so soon after the Criminal Justice Act 2003? If there had been any serious defects in the criminal law, which I do not believe that there were, surely they ought to have been cured when the present Government came back for the second time with the 2003 Act. So why do we have this massive new Bill? I suspect that one answer is the Government’s perceived need—perceived by the Government, but not by me or, I suspect, by the rest of us—to reassure the public from time to time that they are being tough on crime. Of course, that has the additional advantage of putting the official Opposition in the awkward position of not wanting to oppose unnecessary provisions for fear of appearing soft on crime. Thus, what goes into a criminal Justice Bill nowadays seems to be at least in part driven by what will play well with the public. There is thus little time left for the serious consideration of basic defects in the structure of our criminal law—a good example of which is the law of murder, on which we touched the other day during Questions. Everybody knows that the law of murder is in a mess, and has known long before the Law Commission said so in clear terms in its report in 2006. Everybody knows that one of the difficulties in making sense of the criminal law is the mandatory sentence of life imprisonment. It causes great injustice in individual cases. The Law Commission sought to solve that problem by dividing the law of murder into two degrees, only one of which would carry the mandatory life sentence. That is the sort of question that we ought to be considering today. But what do the Government do? They shelve the problem. Yet again, they have decided to consult on one aspect only of the Law Commission report: on the so-called partial defences. The Law Commission reported on that subject as long ago as 2004 and still nothing has happened. And why not? Because neither of the main political parties will dare to tackle this obvious problem without the co-operation of the other, for fear of what the Daily Mail might say. I am sorry to put it in those rather blunt terms, but that is the truth as I see it. The second purpose of bringing forward this massive Bill so soon is to correct the mistakes, which have now become apparent, made in 2003. That brings me to Part 2 of the Bill. Everyone accepts that Parliament has a proper role in fixing general levels of sentences. However, if it does, Parliament must take account of the consequences. A good example—I am glad that the noble Lord, Lord Dholakia, dealt with this point—is the new indefinite sentence for the protection of the public; the flagship of the 2003 Act. Judges already had ample powers to impose discretionary life sentences for the public’s protection and they used those powers. However, the Government thought that more powers were necessary. The effect is that we now have 3,100 defendants serving indefinite sentences, nearly half of them for relatively minor offences, such as street robberies. The average tariff for all of them would have been 30 months. That is a slightly different statistic from the one given by the noble Lord, Lord Dholakia, but it is another one that shows what has happened. Surely the Government should have realised that this would happen. Surely they must have realised what would be the effect on prison populations. However, they did not. As a result, as the Lord Chief Justice said in a lecture the other day, after court prisoners are being driven around for hours on end in a desperate search for a prison that can squeeze them in. As often as not, two or three hundred are spending the night in police or court cells. We simply cannot go on like this. It is particularly unfair on people serving these indefinite sentences because they cannot go before the Parole Board to prove that they are not dangerous until after they have served on a training course; but they cannot get on to a training course. That is a great injustice. I am glad that not before time the Government have decided, at least in part, to backtrack on the effect of indefinite sentences. At the other end of the Bill, I am equally concerned, as I am sure the noble Lord will realise, about violent offender orders. I shall oppose them in exactly the same way, and for exactly the same reasons, as I opposed serious offender orders. Ever since we hit on ASBOs, it seems that the law has been going down the long road in trying to make civil preventive orders do the work of the criminal courts. Once again, I will have some things to say about that when the time comes.