Clause 7 — Influencing A Prosecutor

Orders of the Day — Justice (Northern Ireland) Bill [Lords] – in the House of Commons at 7:27 pm on 26th April 2004.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 14, in page 4, line 29, clause 7, leave out

'a term not exceeding 5 years' and insert 'life'.

No. 15, in page 4, leave out lines 31 and 32.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

May I say how good it is to be with the House at last? I understand that, courtesy of my hon. Friend Lembit Öpik, the House has been kept well advised of my progress southwards through the country. I do not know whether the problems of travelling to and from the northern isles or the problems of Northern Ireland will be the first to be resolved, but I suspect that neither outcome will be quick. I am grateful to my hon. Friend for his assistance at such short notice today. I can at least say that the fog has cleared and I am here. If I were less kind, I might say: I am here, so the fog will now clear.

Clause 7 was the subject of one of the more interesting parts of our debates in Committee. I have remarked in the past on the tendency of this and other Governments to criminalise conduct that is already criminal. Part of the Minister's justification for the clause, both on Second Reading and in Committee, was that the creation of offences of this sort would send a signal. That is worth considering, and it is worth asking exactly what signal clause 7 is likely to send. As we heard in Committee, the fact is that it signals that an attempt to pervert the course of justice by influencing a prosecutor is somehow a lesser species of the existing common law offence. The common law offence on indictment attracts a maximum penalty of life imprisonment, whereas the offence in the Bill has a maximum penalty of five years imprisonment, or a fine, or both.

In Committee, the Minister told us that he had researched the point and that the average sentence for the offence of perverting the course of justice was something in the region of 24 months, as I recall.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

May I clarify that? The average sentence is between four and 24 months.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am grateful. That was about as helpful as the Minister got in Committee, and I hope that he can go a wee bit further tonight.

The range of four to 24 months where the maximum penalty available to the courts is life imprisonment is an interesting one to consider. If the maximum penalty goes to five years in prison, I would say that there will be downward pressure on the sentences imposed because the penalty will be assessed within the range available to the court. It will be interesting, if the clause is enacted, to revisit it in five or 10 years' time to see what the effect has been on sentencing, and compare that trend against the trend in other respects, my suspicion being that the average length of custodial sentences is increasing.

The clause appears not properly to appreciate the distinction that exists between the possible and the actual penalties imposed. Most worryingly, it betrays a total lack of understanding of the practicalities of work in the criminal courts. Often it may appear to a prosecutor who is preparing a case that this sort of offence is of a lesser seriousness and towards the bottom end of the scale. Only when the witnesses are in court and one can hear the evidence in its totality does it become apparent just how serious an offence may be. To limit the range of sentences available to the court to five years, as the Minister seeks to do, is to limit the range of disposals available to the court, which runs the real risk of miscarriage of justice, in that someone will not receive the full penalty that should be available for them.

In Committee, we asked the Minister why the Government had felt it necessary to introduce the clause. Is there a particular problem to which attention requires to be drawn? How many prosecutions have there been for attempts to pervert the course of justice by influencing a prosecutor in, say, the past five or 10 years? What problems encountered by the prosecution authorities or the courts in obtaining convictions in those cases mean that we now need a statutory offence? The Minister did not answer those questions in Committee, and I invite him again to tell me how many prosecutions there have been and what problems have been encountered. I suspect that the clause is a window-dressing exercise, a bit of padding to make the Bill be seen to be doing something even if it is something that is not necessarily pressing in any way.

The amendment has been grouped with amendments Nos. 14 and 15, tabled by Mr. Trimble. We agree with those. Amendment No. 14 is entirely on all fours with an amendment that I moved in Committee, and the points that I have already made apply to it with equal force.

From the point of view of the practicality of obtaining prosecutions and convictions, amendment No. 15 makes good sense. In relation to proving a charge under the clause, a hurdle is being put in the way of the prosecutor that does not exist for the common law offence. One can quite easily imagine that a prosecutor working under pressure and trying to meet deadlines will find himself or herself either forgetting initially to obtain the director's consent or, worse still, obtaining it but omitting to make proper reference to it on the indictment and therefore failing properly to specify the charge.

I have heard nothing on Second Reading or in Committee to justify the clause. Accordingly, I urge the House to delete it from the Bill.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 7:45 pm, 26th April 2004

I pay tribute to Mr. Carmichael, who drew this matter to our attention in Committee. I hope that the Minister has reflected on what was said there. All that the hon. Gentleman said was absolutely right. The clause, which the Minister says is intended to highlight a particular matter, in fact sends the signal that that matter is less important. By reducing the sentence and putting a procedural hurdle in the way, the clause will have completely the opposite effect to that which the Minister wants.

The most elegant solution to the problem would be to agree amendment No. 7 and delete the clause. I know, however, that the Minister is not a free agent and is not able to do that because the Government made promises to people that they would introduce clauses of the nature of clause 7, and I tabled amendments Nos. 14 and 15 to remove the limitations being placed on the existing offence and bring the clause into line with the more substantial penalties that already exist. The Government are reducing the penalties available for this form of perversion of the course of justice. I tabled the amendments knowing that the Minister is not a free agent so that he can keep his promises to others without having a perverse effect. I hope that he will do so.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

I support amendment No. 7 and welcome Mr. Carmichael for, in spite of his late arrival, proposing a very good amendment. I shall not rehearse the arguments that have been put, but the hon. Gentleman said that the clause was a piece of unnecessary padding added to the Bill, and that prompts the question that I have asked about a number of provisions—whether the Minister can explain exactly why the clause was added.

What representations have been made to him? Who has pressed him to introduce this superfluous and unnecessary provision? The Bill's origins lie in the Hillsborough discussions and the joint declaration. Is that really the best way to approach the drafting of legislation in such a crucial area?

Clause 7 is completely unnecessary as it replicates the common law offence. If the hon. Gentleman wishes to divide the House on the issue, he will have the support of my party.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

When, in Committee, I asked the Minister why he was troubling us with a new clause that was designed to remedy a situation that, he admitted, was inconceivable, he told me:

"I do not think that it is necessarily good practice to retain redundant legislation".—[Official Report, Standing Committee D, 25 March 2004; c. 62.]

Well if it is not good practice to retain it, it is worse practice to create it, but that is exactly what the Minister has done by creating a statutory offence when a perfectly good common law offence exists.

The Minister's excuse for doing so was given in Committee when he said:

"We are highlighting the seriousness of such an offence".—[Official Report, Standing Committee D, 1 April 2004; c. 90.]

It is a strange way to highlight the seriousness of an offence to reduce the potential sentence from life to five years. I hope that the hon. Member for Orkney and Shetland will press his amendment to a Division.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

It is right that we gave considerable thought, as I said in Committee, to the appropriate penalty to attach to the offence. It was decided that it should be compared to the offences of intimidating a juror, which carries a penalty of five years following conviction on indictment, and of perjury, which carries a penalty of seven years following conviction on indictment. It is true that the common law offence, like all such offences, attracts a maximum penalty of life. However, it is not a logical conclusion that moving away from that step towards infinity lessens the penalty.

As I said, case law suggests that the offence has in practice carried a sentence of between four and 24 months. There have been about 11 cases of attempting to pervert the course of justice in the past five years. It is not likely that introducing penalties that are significantly higher than those that are being imposed will lead to a reduction in the range of the tariff. In common law cases that carry a maximum sentence of life, it is not the maximum that is the major determinant, but the case law and the standard tariff that is applied by the courts in a particular jurisdiction.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Is the Minister really telling the House that he cannot envisage circumstances in which a serious attempt to pervert the course of justice by influencing a prosecutor would not merit a sentence in excess of five years?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

All I can say is that that has not been the experience, and five years is a substantial penalty. The hon. Gentleman is a lawyer and he could advise me whether a common law case could be mounted if it were felt to be more relevant in the circumstances. The case law shows a substantial gap between the average tariffs imposed and the one that we are suggesting. It is not normally the case that hon. Members suggest that the penalty should be life imprisonment.

The hon. Gentleman rightly points out that Governments of all persuasions seek to put on statute offences found in the common law. Why have they done so? First, common law offences are by their very nature uncertain, particularly at the edges. Offences therefore may be put on statute for reasons of clarity. The common law is open to interpretation, and that interpretation may change over time.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

What particular problems, around the edges or otherwise, relating to the common law offence of attempting to pervert the course of justice have been encountered that have led to this provision being introduced?

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

It is more a general movement towards rationalising the position. We have considered the offence and the theoretical possibility of a life sentence against the range of sentences that have been imposed, and we will bring the two a little closer together. Secondly, it may be necessary to formalise the range of penalties available for a certain offence. Finally, an offence might be put on statute to ensure that it is fully human rights compatible.

Turning to the specifics of the offence in clause 7, the Government have decided to put it on statute for the sake of clarity. We want to underline the independence of the director by making it abundantly clear that improperly seeking to influence him or her is illegal. The independence of the DPP and the prosecutors is critical to the functioning of the justice system in Northern Ireland. The current director, and indeed the previous incumbent, brought integrity and independence to the job; and have always made their prosecution decisions impartially, independently and objectively.

However, a new system of justice is being created for Northern Ireland, and in that new system, after devolution, the DPP will be an explicitly independent officer. At the moment, the DPP is subject to the superintendence of the Attorney General for Northern Ireland. However, when part 2 of the 2002 Act is commenced, his relationship with the Attorney-General and the Advocate-General will change and become one of consultation. In those changing circumstances and the circumstances of Northern Ireland, it needs to be made very clear that prosecution decisions will be taken impartially, independently and objectively. The creation of this offence will help further to enhance public confidence in the administration of justice.

Amendment No. 15 would mean that prosecutions of this offence could be carried out without the consent of the director. The subsection the amendment seeks to remove is there to ensure that a prosecution is brought only when there is sufficient evidence and when the prosecution will be in the public interest. It is an important safeguard to ensure that only cases that should be prosecuted are prosecuted.

I ask the hon. Member to withdraw his amendment.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

In circumstances in which all hon. Members agree that attempting to pervert the course of justice by influencing a prosecutor is a serious matter and requires prosecution with the full array of powers available to the authorities and punishment with the utmost vigour, I find it hard to believe that we will again divide on the issue. But what alternative does the Minister leave us? We have asked him pertinent questions on three occasions. What problems have the prosecuting authorities encountered? How many cases have been lost, and how many have even been mounted? Why is a problem perceived?

The Minister referred to statistics gathered in the past five years, which have, fortunately, been among the calmer in Northern Ireland's history. What would the story be if we went back 15 or 20 years? Is it not possible that we would find instances of attempting to pervert the course of justice by influencing a prosecutor or other people in the criminal justice system that would merit a sentence in excess of five years?

The Minister has answered none of these questions. When I asked him about cases of attempting to pervert the course of justice in which a sentence of five years or more would be appropriate, he said that they could probably still be liable to the common law offence anyway. Does that not show the futility and nonsense of re-enacting that which is already criminal?

The Minister told us that the common law can be problematic because it is open to interpretation. The words

"with the intention of perverting the course of justice" are contained in clause 7. If there is a problem with the interpretation of the common law offence, there will be a problem with the statutory offence that he seeks to create. If I am wrong, I hope that he will intervene to point out to me why I am wrong. He stays firmly glued to his seat; I suspect that I am not wrong. Worse than that and most frustrating of all, he knows that I am not wrong.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 8:00 pm, 26th April 2004

I thought I had indicated at some length—although not as much length as I did on a previous clause—why we believe this is a useful provision. It has the advantages of clarity, ensures compliance with human rights and provides a proper scale of penalty that more accurately reflects the tariff in the courts. That may not satisfy or please the hon. Gentleman, but I do not think that he can say that I have not responded.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am afraid that I can say that because, yet again, the Minister has failed to answer. He was asked: what are the problems, where has the lack of clarity arisen and what in the Bill will change the situation? He has not answered any of those questions. I shall give him one more chance to respond, but it appears that he will not.

In these circumstances, the debate on this clause has been one of the biggest wastes of parliamentary time that I have seen since I came here. The fault for that lies fairly and squarely with the Minister and with his refusal to engage in proper debate with the House. Accordingly, I will press the amendment to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 132, Noes 254.

Division number 146 Orders of the Day — Justice (Northern Ireland) Bill [Lords] — Clause 7 — Influencing A Prosecutor

Aye: 132 MPs

No: 254 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.