National Crime Agency: counter terrorism functions, FoI and strike action
The Committee expresses concern about the lack of clarity in the Bill introduced by the power to confer counter-terrorism functions on the National Crime Agency, since the need for this has not been demonstrated and the intended review of current counter-terrorism policing structures in England and Wales has not yet been carried out. The Committee is also concerned about provisions for the National Crime Agency to be exempt from freedom of information legislation, and for Agency officials with operational powers to be forbidden from taking strike action – even before current negotiations with trades unions for a voluntary no-strike agreement have been concluded.
Judicial appointments: diversity
The Committee welcomes measures in the Bill to promote diversity in judicial appointments, although it believes the Bill does not go far enough in this respect. The Committee is not satisfied with the Government’s explanation for not extending to the Lord Chancellor and the Lord Chief Justice the statutory duty, which already applies to the Judicial Appointments Commission, to have regard to the need to encourage diversity in the range of people available for selection for appointment.
Selection of President of Supreme Court and Lord Chief Justice
Role of Lord Chancellor
The Committee does not agree with the Bill's proposal to allow the Lord Chancellor to sit as a member of the selection commission for the appointment of the President of the Supreme Court and the Lord Chief Justice, in place of his current power of veto over the recommendation of that commission. The Committee recommends that the Bill be amended to remove this provision, and to make the current process more transparent by requiring the Lord Chancellor to make public, without identifying candidates, any exercise of the power to reject – or request that commission to reconsider – its recommendation.
Filming and broadcast of court proceedings
Public consultation and a more detailed impact assessment
The Bill confers on the Lord Chancellor a broad power to lift the current restrictions on filming and broadcasting of court proceedings. The Committee agrees with the Government’s objective of making justice as transparent and publicly accessible as possible. However, despite the safeguards in the Bill and the Government's stated intention to proceed incrementally, the Committee is concerned that vulnerable victims and witnesses may be deterred from the judicial process and that certain defendants may not receive the protection their vulnerability demands. The Committee urges a much more cautious approach and recommends, before any extension of this power, that the Government conduct a more comprehensive public consultation, carry out a more detailed impact assessment, and conduct a review of the operation of this power after an elapse of years. For the moment the Bill ought to be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings only.
Immigration and nationality judicial reviews
The Bill also provides for the transfer of immigration and nationality judicial reviews from the High Court to the Upper Tribunal owing to the delays caused for all categories of case by the volume of immigration and asylum judicial reviews heard in the Administrative Court. The Committee urges the Government to consider amending the Bill to insert additional safeguards to ensure that immigration and nationality cases in which human rights such as life, liberty or freedom from torture are at stake continue to be decided by high court judges after the transfer.
Family visit visas: full right of appeal
The Committee opposes the proposal in the Bill to remove the full right of appeal against the refusal of a family visit visa, given the number of successful appeals and the continued lack of evidence before Parliament as to the proportion of appeals which succeed because new evidence is submitted as the result of an error by the applicant rather than the UK Border Agency.
Drug driving: 'spiked drinks' defence
The Bill creates a new "strict liability" criminal offence of "drug driving" which the Committee recommends should be amended to introduce a “spiked drinks” defence which places a legal burden of proof on the defendant. The Committee believes that this defence should also be made available to the drink driving offence in s. 4 of the Road Traffic Act 1988.
Public Order Act 1986 section 5: insulting words and behaviour
While understanding the sensitivities within certain communities on the issue of criminalising insulting words and behaviour, the Committee nonetheless believes that the Crime and Courts Bill provides an opportunity to reduce the current scope of section 5 of the Public Order Act 1986. The Committee considers that the inclusion of "insulting" in section 5 constitutes a disproportionate interference with freedom of expression, and thus supports an amendment to remove it from that Act. The Committee also wishes to see the Bill abolish the common law offence of scandalising the court.
Dr Hywel Francis MP, the Chair of the Committee, said:
"We are especially concerned about the power in the Bill to lift the current restrictions on filming and broadcasting of court proceedings. We agree that justice must be transparent and publicly accessible. But the power in the Bill is too broad. The Government’s current intention is to limit filming to the appellate courts, with the possible addition of sentencing remarks in the Crown Court in due course, However, as currently drafted, it could too easily be extended to include filming of witnesses, parties, crime victims, jurors and defendants – a very different proposition, which could have the unintended consequence of deterring victims and witnesses, and possibly even undermining the fairness of trials. It’s potentially a slippery slope. We would urge the Government to move more thoughtfully with wider public consultation and a more detailed impact assessment.
We also cannot support the removal of the right to appeal against the refusal of family visit visas. Too many appeals are successful for this provision not to strike disproportionately at the right to family life."