Clause 6 - Influencing a prosecutor

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 10:00 am on 1st April 2004.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:00 am, 1st April 2004

I beg to move amendment No. 57, in

clause 6, page 4, line 15, after 'whether', insert 'or not'.

Subsection (2) states:

''A person commits an offence if, with the intention of perverting the course of justice, he seeks to influence a barrister or solicitor to whom the Director has under section 36(2) assigned the institution or conduct of any criminal proceedings in any decision as to whether to institute or continue those proceedings.''

I hope that it is not merely a piece of semantics to say that the use of the word ''whether'' without the phrase ''or not'' is bad drafting. I am quite sure that the Minister's intention is that the decision is whether or not to institute or continue those proceedings. I dare say that the Minister will tell me that the word ''whether'' implies ''or not'' within it. However, I think that it should be spelled out in the Bill. It does no harm and it makes it clear that it applies to both the positive and negative acts.

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

We welcome the hon. Member for Beaconsfield (Mr. Grieve), although we wait eagerly to hear his silent partner, the hon. Member for New

Forest, West (Mr. Swayne) at some stage during our proceedings. We believe that implicit in the word ''decision'' is a decision to institute or continue proceedings or not to do so. The decision can be either positive or negative. Therefore, as the hon. Gentleman rightly identified, it is semantics. The additional phrase would be superfluous. Alternatives could be sprayed throughout legislation, not for the benefit of clarity and certainly not for the benefit of brevity.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry but not surprised to hear the Minister's response. Having spent many hours on Bills in the past three years, I find that modern drafting is constantly a matter of implication and inference. I happen to think that that is very poor drafting practice. A very unfortunate impression is created when the clarity of previous legislation is compared with what has been produced by the modern practice that is creeping in—although I must accept that the present case is by no means the worst example.

There is a constant requirement for second-guessing about what is implied. The words ''whether or not'' are a very well established grammatical form, but they have been abandoned in the clause for no good reason. However, as I suppose we shall be able to consult Hansard to find out what the Minister meant, even though it will not be clear in the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 4, in

clause 6, page 4, line 21, leave out

'a term not exceeding five years'

and insert 'life'.

I can join the hon. Member for Beaconsfield in harking back to a golden age of Bill drafting. The clause as a whole is indicative of another problem—partly in drafting and partly to do with the approach of the civil service—which is our tendency to legislate on things that are already criminal. The tendency began in the early 1980s with the creation of the statutory offence of vandalism when, in Scotland, we already had the offence of malicious mischief, which served the same purpose. The only difference at the time was that occasionally vandalism charges became time-barred after six months, whereas there was no statutory time bar on the common-law equivalent.

We spend too little time in this place doing what is necessary and, sadly, too long doing things that are not necessary. The Minister suggested that if what was proposed was innocuous, it was unnecessary. I rather choked at that, considering that we are about to move on to clause 6, which is wholly unnecessary.

The Minister said on Second Reading that the Government wanted to introduce the provision in statutory form, because it was right to make the point—or words to that effect. I accept that the matter is also part of the criminal justice review. I think that it is mentioned at paragraph 4.163.

In making a point, one should be careful about the point one chooses to make. The amendment is intended to make the offence in the Bill the same as

the common-law offence that it is to duplicate. At present, someone who is tried on indictment for the common-law offence is liable to life imprisonment. The Bill limits the sentence to five years. To my mind—as we are talking about making a point, or sending a signal—the signal that the Minister would be sending by creating the statutory equivalent would be that trying to influence a prosecutor is a lesser species of offence, less serious than trying to influence a witness, a judge or a police officer.

If I were being investigated and I chose to run away from the police—something perhaps considered to be at the lower end of attempting to pervert the course of justice, but a form of the offence that is quite often found—I should be liable to the full penalty. I hope that I should not find myself in that predicament. As a one-time prosecutor, I am concerned about what we are saying about the relative seriousness of that offence and the offence of seeking to influence the prosecutor.

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

Probably the nearest analogy is the offence of intimidating a juror. Under the Criminal Justice (Northern Ireland) Order 1996, that carries a penalty of five years.

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

That is another unnecessary offence, because it, too, deals with an attempt to pervert the cause of justice. Criminal law is now littered with unnecessary offences. Simply to say that we will do something again because we have done it before is a pretty weak argument, and I expect more of the Minister. Why do the Government consider that there is a problem? How many cases have been reported? How many prosecutions have they raised and what problems have they encountered in raising prosecutions?

The hon. Member for Beaconsfield did us a service in tabling his earlier amendment, because he highlighted the spurious point that someone might make as a plea to the relevancy of a charge in a court, which, on a wet Friday afternoon, might be held up by a judge somewhere. I well recall one prosecution in which I lost the case on a submission of no case to answer, because the sheriff wanted to get off to see something at the Edinburgh festival on a Friday. These things happen. That would not be a problem if the case were brought under the common-law offence. There is scope to make such points under the statutory equivalent. If there is a need or a problem, we should deal with it, but surely we have better things to do with our time than legislating simply for the sake of it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman makes a powerful case extremely well, and he is right. The problem is not peculiar to Northern Ireland: it is a problem of the entire legislation throughout the United Kingdom, and it occurs all the time, yet it appears to be remarkably unnecessary. I therefore hope that the Minister will provide cogent reasons why the discrete statutory offence should be allowed to remain in the Bill, and that he will tell us its purpose—or is it simply window dressing?

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

No, it is not window dressing. The purpose is partly to emphasise the offence to the courts. The question of the comparison between five years and life was legitimate for the hon. Member for Orkney and Shetland (Mr. Carmichael) to raise, so I asked for a little research to be done on the usual penalties imposed in such cases. I understand that they run between four and 24 months, even though the potential sentence is life. A tariff of five years is analogous to that for intimidating a juror, which is also a serious offence. There is the argument, which the hon. Gentleman advances, that a number of these matters are already the subject of common law. Should we therefore enshrine them in statute? Should we impose specific penalties? Should we highlight the seriousness with which society views these specific offences, rather than consider them in the round under common law?

The hon. Member for Orkney and Shetland is right about vandalism. The reason why legislation is relevant for vandalism in particular is the concern expressed by the public, and their frustration at the inability of the system to deal with such problems. That is precisely why we have introduced legislation and why I hope shortly to introduce legislation on antisocial behaviour to bring the law in Northern Ireland in line with that in England and Wales. The reason is to provide penalties and to indicate clearly that Parliament and the justice system are responding to public concern.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:15 am, 1st April 2004

The Minister has almost answered his own question, but not, I think, in the way that he intended. Is not the reality that passing legislation is designed to con the public into believing that something will be done that previously has not been done, even though the law exists under which it could be done? By constantly introducing new legislation, he gives the impression that a new dawn is nigh, but it is not, because if the old legislation is not being used, the problem must be enforcement, not the legislation itself.

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

The problem is not necessarily just enforcement, but the action taken by the courts to apply the available penalties. One reason for taking such measures is to specify penalties.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The Minister is shifting himself into saying that the clause is designed to persuade the courts to apply the penalties, so why is he reducing the penalties? That is what the clause does. He said earlier that most of the sentences were a matter of months, but that is chosen from a range that starts with nothing and goes to life. If we compress the range to a maximum of five years, the sentences will be reduced accordingly when the court decides that the offence is not very serious. The consequence of the clause is perverse, and he would achieve his objective better by withdrawing it altogether.

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

I do not accept that. As I have said, the courts seem to be using a range of four to 24 months, although, as the right hon. Gentleman rightly said, it runs from nought to infinity. We are indicating clearly that we take the offences seriously and that the maximum penalty is five years. Including that in the

Bill reinforces the message, and we will look to the courts to enforce the penalties. Accordingly, I reject the amendment and commend the clause.

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

I notice that, despite my invitation to tell the Committee how many prosecutions have been brought, what problems have been encountered and how many cases have been reported, the Minister neglected to say why there is a pressing need to legislate. I am happy for him to intervene to answer those questions, but as I am not being interrupted, I presume that there is no pressing need.

The point made by the right hon. Member for Upper Bann about the range of sentence affecting the sentences imposed is spot on. The Minister has confused the range of sentences available to a court with the sentences that are imposed. I had the same difficulty yesterday with the Constitutional Affairs Minister, the hon. Member for Shipley (Mr. Leslie) in a Committee on the Lay Magistrates (Eligibility) (Northern Ireland) Order 2004. It may be true that the range used is from four to 24 months—that sounds about right from my experience—but that is no argument for fettering the court's discretion as the clause will.

One can imagine a situation in which an indictment is drafted in haste, the statutory offence is included with no common-law alternative and a sentence of five years is completely inappropriate. It is not unusual for prosecutors to include a statutory offence in an indictment without considering the extent of the sentence available to the court, so there is the potential for that to happen. If we do anything in this Committee, it must be to consider the possible pitfalls and the potential worst case scenarios and say, ''We can do that better.''

At this stage, I am not minded to pursue the amendment to a Division, as I would prefer to vote on the clause as a whole, for the reasons outlined in this debate. None of my questions has been answered, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I tabled amendment No. 26 on behalf of the Democratic Unionist party calling for the clause to be omitted from the Bill. That amendment was unnecessary because the clause stand part debate gives me the opportunity to make the point.

The short answer to the question why clause 6 should be omitted is that there is no discernible reason for its inclusion—it is a mystery clause. The explanatory notes say:

''This clause creates an offence of seeking to influence a prosecutor . . . as recommended by the Criminal Justice Review at recommendation 46.''

The problem is that the explanatory notes are confused and confusing, because the Bill does not create an offence of influencing a prosecutor—that offence already exists in common law, as the Committee has been told. Perverting the course of public justice is a long-standing offence that has been well defined and interpreted in case law. Clause 6 adds nothing to the

body of case law concerning the common-law offence of perverting the course of justice.

I suspect that the clause has been included because of a promise made at Hillsborough. That prompts the question: is the quality of law a secondary consideration to the determining factor of who asks the question?

On Second Reading in another place, Baroness Amos offered an intriguing two-part explanation for the inclusion of the clause. She said:

''We have linked the offence with the idea of perverting the course of justice so as to be clear about what would constitute criminal behaviour''.—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1118.]

It is impossible to accept that reasoning, because there is no need to clarify the existing law. No court could remotely fail to conclude that seeking to influence the director, deputy director or a public prosecutor, with the intention of perverting the course of justice, is an offence under common law. It is absurd to argue that greater clarity is needed; clarity already exists.

The second point that Baroness Amos argued was that the Government are linking the offence of influencing the prosecutor with common law to avoid ''criminalising apparently innocent behaviour.'' That defies comprehension, and I invite the Minister to inform the Committee precisely what ''apparently innocent behaviour'' might be regarded as criminal activity without the clause.

The common-law offence of attempting to pervert the course of justice is well defined in case law and fully embraces the offence of influencing or trying to influence a prosecutor, so the clause is wholly unnecessary.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I support the hon. Gentleman on this issue, and I urge the Minister to think again. It is clear from the comments made by the hon. Member for Orkney and Shetland that the clause is misconceived and will have a harmful effect. As I tried to point out in an earlier intervention, it will result in lesser sentences being given for the existing offence.

The Minister referred to a similar offence that had been notionally re-enacted with regard to trying to influence jurors. It is clear that the authors of the review of the criminal justice system were unaware that the offence already existed—and they are persons with some knowledge. One of the consequences of creating new offences where they are not necessary is that sight of the original common-law offence is lost.

Introducing this apparently new offence, as with the earlier one, will reinforce the tendency of practitioners to think that the statutory offences are the only ones that exist. Consequently the common law will not used. As has been pointed out, the common-law offences are more comprehensive and carry a heavier penalty. Rather than reinforcing the issue and drawing it to the attention of the public and practitioners, the Minister is creating a situation where the more serious offence is overlooked and not used. Consequently the behaviour that he wishes to stigmatise receives a lesser penalty. That cannot be what he really wants. That is why I ask him to think about it again.

The hon. Member for Basingstoke suggested that the Bill originated out of some sort of deal. Unfortunately, the explanation is much more mundane. It is part of the competition that exists between the SDLP and Sinn Fein. One of the characteristics of this competition is that rather than competing with each other directly, they do so indirectly by trying to show that their party is more efficient at beating up the Government than the other. The competition at that stage was over which party could insist more vigorously on the Government fully implementing a report, whether it be Patten or the criminal justice review.

Some persons on behalf of the SDLP ploughed through the criminal justice review trying to accumulate examples of failure to implement recommendations with which to beat up the Government and then compel them to introduce legislation. Some researcher working for the SDLP found this paragraph and saw that it urged that an offence be created. The researcher evidently did not know that the offence already existed and so included it in the list of failures that the SDLP presented to the Government for inclusion in legislation.

The Government, for their part, did not bother to research the matter properly. They were anxious to placate the SDLP, because in the more general political sense, they were letting the SDLP down badly by offering substantial concessions to Sinn Fein, but not to the SDLP. As the SDLP had presented this little list of recommendations from the criminal justice review that should have been implemented, the Government decided to give them it to keep them happy. That is how the Bill originates.

It is clear that neither in the SDLP's original research or the Government's reception to it at Hillsborough, nor even in the preparation of the Bill, did anyone sit down to consider the consequences for the criminal justice system. Somehow, perhaps before the Bill completes its parliamentary passage, the Minister might like to vindicate and uphold the principles of that criminal justice system about which he is supposed to be concerned and think seriously about this Bill and start removing some of its flaws. One of those flaws is clause 6.

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

I endorse the right hon. Gentleman's comments about desuetude in common law, which is the real consequence of offences of this sort. When speaking of the penalties to be imposed in relation to this offence, I may have indicated to the Committee that that was the only difference. On reflection, I do not think that that is correct. Subsection (4) states:

''Proceedings for an offence under this section shall not be instituted without the consent of the Director.''

Presumably that is a difference between the proposed statutory offence and the common-law offence. It is another hurdle that a prosecutor may find himself falling on if, per incuriam, he forgot to obtain the consent of the DPP or, as I think is usually the case, if it were not to be shown on the face of the indictment that the consent had been obtained. That is another

instance of how we are replacing a sensible, straightforward, available, common-law offence with one that puts extra hurdles in the way of the prosecutor, and attracts a lesser sentence.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 10:30 am, 1st April 2004

I shall be brief, because a number of the issues were dealt with when we discussed the amendment. I point out to the Committee that it is not unprecedented to put matters previously covered by common law into statute. I mentioned intimidating a juror, which was the subject of the Criminal Justice (Northern Ireland) Order 1996—not, therefore, a decision taken by this Government. The hon. Gentleman may deplore such general practice, but he should not argue that it is unprecedented, or that there is no good reason for Governments to take such action.

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

Has the Minister had the opportunity to consider the record of the proceedings of the 1996 legislation? Did the Labour party agree to it or oppose it?

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

It may well have supported it, which might indicate a broad body of opinion, from which the hon. Gentleman may wish to exempt himself. We are highlighting the seriousness of such an offence, and prescribing penalties that are well over twice the normal tariff applied by the courts, so I commend the clause to the Committee.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 6.

Division number 5 Adults Abused in Childhood — Clause 6 - Influencing a prosecutor

Aye: 11 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 6 ordered to stand part of the Bill.