Coroners and Justice Bill

I am delighted to add my name to that of the noble Lord, Lord Borrie, in opposing Clause 138. I will supplement what he has said without repeating it because I entirely agree with everything that he has said. I should declare some interests. I was amicus curiae in the Blake case, which seized the profits of his memoirs in the Court of Appeal. I am on the Joint Committee on Human Rights and I am a vice-president of English PEN. I do not know whether your Lordships will have seen a letter in today’s Guardian from Lisa Appignanesi, the president of English PEN; Frances Crook, the director of the Howard League for Penal Reform; Pat Jones, the director of the Prisoners’ Education Trust; and Rachel Billington of Inside Time magazine, the national newspaper for prisoners. Since they are potentially on the receiving end as people concerned with publications and free speech, it is right to tell your Lordships something of what they have said. They write: ""The law would apply to all mediums of expression, including any visual art, poetry and fiction created by former prisoners about their crimes. It would also apply to offences committed overseas. The title ‘Criminal Memoirs’ implies a narrow focus which is entirely misleading.""Additionally, the considerations that allow for a seizure application to be made are far too broad. One criterion is the extent to which the public is ‘offended’ by the payments. Such subjective criteria make for bad law that is open to abuse. Genuine attempts at rehabilitation become vulnerable to populist campaigns.""The government assures us that the new Exploitation Proceeds Orders will be used sparingly, but the broad criteria outlined in the Bill lead us to fear otherwise. We are conscious of how Terrorism Laws have been misused in recent years, and we are deeply concerned that the new seizure orders will enable similar over-reach.""The Government did not consult widely enough on this issue. The proposals as they stand place countless rehabilitation charities in an uncertain position. We urge Ministers and Parliamentarians to revisit Part 7 … in dialogue with those groups that share the Government’s over-riding commitment to prisoner rehabilitation and integration"." I am delighted to see the noble Lord, Lord Ress-Mogg, in his place, because I think he—probably alone in the Committee, as a distinguished former newspaper editor and book collector—will reflect as we debate this on whether it is sensible to have 14 pages of the Bill devoted to this issue. I turn next to what the Explanatory Notes say about the European Convention on Human Rights because I have the misfortune to disagree with how they are expressed. I am looking at pages 156 and 157. Paragraph 950 states: ""It is arguable that Article 10"—" the free speech guarantee— ""could be engaged because the scheme might deter people from writing or speaking … about their offences, thus limiting that person’s freedom to impart information and the rights of others to receive it. If Article 10 is engaged, the Government considers that any interference is justified. Article 10 is a qualified right and ""may be subject to restrictions that are prescribed by law and necessary in a democratic society in pursuance of a legitimate aim"." Paragraph 951 then refers to meeting, ""the pressing social need to allay public concern about criminals profiting from their criminal behaviour"." It also states that the Bill is, ""necessary … and proportionate in doing so"." The Explanatory Notes conclude in paragraph 953 that the provisions are "consistent with Convention rights". Without boring the Committee with a lot of detail, it is perfectly clear that the provisions engage free speech. There is not the slightest doubt about that. Indeed, there is much case law on the taxing of free speech—the imposing of limits by way of costs on free speech or depriving the author of a means of exercising free speech. There are many different ways in which interference with free speech must be justified. When the Explanatory Notes suggest that it is an open question, it is not. There is no doubt whatever that these provisions implicate free speech directly. It is true that they do not ban publications in advance. That is the worst form of interference because it involves censorship. However, they deprive the author or publisher of the financial means or the profits that come from it, so free speech is undoubtedly implicated. It is absolutely clear in the case law of the European Court and of our own courts that the right to free speech may be exercised even where the speech shocks or offends a section of the public. We all understand perfectly well that reading a gloating memoir about a heinous crime would cause huge distress to the victim or his or her family. We are not at all insensitive to the hurt that can cause, but this Bill does not deal with that narrow problem of hurt. It covers prisoners in this country, former prisoners and an enormously wide range of expressions. Last evening I had the pleasure of entertaining eight members of a remarkable British Asian family, the Sen Gupta family. I explained what we are debating today and all of them—they comprised very intelligent people such as lawyers and doctors—said that it was ludicrous to imagine that they would be offended by reading criminal memoirs. One of them referred to Shantaram by the Australian author, Gregory David Roberts, in which he reflects on serious criminality. One lady said that reading that book had been of enormous benefit in enabling her to understand why crimes are committed and how criminals may be rehabilitated. Therefore, I am very sorry to say that I do not think this measure is in any way a proportionate response to a pressing social need. The impact assessment of the proposal indicates that no more than two cases a year will come to court at an average annual cost of £370,000. Introducing a measure with such a potential chilling effect on free speech for such a small number of cases is a prime example of taking a sledgehammer to crack a nut. In their responses to the consultation, media groups and the Criminal Bar Association considered that the few instances of profit-making by offenders was not sufficient to warrant legislation and that self-regulation was already sufficient. Media groups argued that the small number of cases of criminals profiting from their crimes did not justify taking any action. The Newspaper Publishers Association noted that the industry’s self-regulation system already imposed strict prohibitions on payment to criminals. The Association of District Judges thought that the proposed scheme was unworkable in practice and that the costs associated with recovery would be out of all proportion to the amount received. As has already been said by the noble Lord, Lord Borrie, the proceeds do not even go to the victims but to the state. Therefore, we very much hope that the Minister will indicate that the Government will reflect on this more deeply. I shall listen with particular interest and pleasure to what is said from the opposition Benches because the dilemma raised by provisions of this kind is that if politicians appear to oppose them they will be accused of being soft on crime or soft on criminals. However, I have faith in the Conservative Party as a party that believes in free speech. I look at the noble Lord, Lord Hunt of Wirral. He and I have been allies on many free speech issues in this House. Therefore, I very much hope that our combined forces may lead the Government to think again.